Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

For purposes of simplification, the information presented by the government entity that requested this opinion are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data that are not public, are available for public access.

On July 26, 2001, IPA received a letter dated July 24, 2001, from Corrine Thomson, an attorney representing the City of Mounds View. In her letter, Ms. Thomson asked the Commissioner to issue an opinion relating to the classification of certain data that the City of Mounds View maintains.

A summary of the facts is as follows. Ms. Thomson wrote that the City has recently received numerous requests for data from members of the public. One of the requests was for the computers of certain employees, city council members, and the city attorney. Another request was for the data on the hard drives of certain employees and the mayor.

Ms. Thomson then requested this opinion.

Issues:

In his request for an opinion, Ms. Thomson asked the Commissioner to address the following issues:

Discussion:

Before proceeding, the Commissioner would like to clarify that he will address only the issue of those data that exist on a PC or laptop hard drive, not data that exist on the City's network system.

Additionally, in her opinion request, Ms. Thomson stated, The City's computer use policies permit employees and council members to make limited use of city-owned computers for personal matters. Thus, while the vast majority of data that exist on a City employee's PC or laptop are government data, there also may be data on the employee's computer that are personal. What constitutes these personal data depends on what the City has authorized for personal use. Any such personal data are not government data because, although they have been created and/or maintained on a government-owned PC or laptop, the employee did not create them in her/his capacity as a government employee, and the purpose of the data is not related to the operation of government. Personal data, therefore, do not fall under the purview of Chapter 13 and the Commissioner does not have authority to address the classification of such data.

The Commissioner also points out that Chapter 13 regulates data, not machinery such as PCs or laptops. Thus, Mounds View is not obligated under Chapter 13 to respond to a request for an employee's PC or laptop. However, if an individual makes a request for certain data that exist on the employee's computer, Mounds View is required to respond.

Issue 1. When a request is made for copies of all data contained on a specific public employee's computer, are the contents of the computer personnel data about that employee within the meaning of Minnesota Statutes, section 13.43?

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified.

Government data are defined at section 13.02, subdivision 7, as all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use.

One analysis Ms. Thomson suggested is that all the data contained on a specific employee's PC or laptop are personnel data classified pursuant to section 13.43, which defines personnel data as data on individuals collected because the individual is or was an employee of a government entity.

Section 13.43 applies only when an employee is the subject of the data. Clearly there are data on some employees' PCs or laptops that are not about that employee or other employees. In such cases, classifying the data pursuant to section 13.43 would be inappropriate. The mere fact that many of the data that exist on a PC or laptop are generated by an employee using that PC or laptop does not make all of the data personnel data.

In addition, it is likely that many of the data on a given employee's PC or laptop are data in which the appearance of the employee's name or other identifying data are only incidental. (See section 13.02, subdivision 5.)

Therefore, it is the Commissioner's opinion that it is most appropriate to analyze the data in terms of content. In other words, pursuant to section 13.03, subdivision 1, the data are public unless there is a specific classification elsewhere in Chapter 13, another statute, or federal law that prohibits the City from releasing the data.

Issue 2. May the City of Mounds View deny access to the city attorney's computer on the grounds that the contents of the computer are not government data or, alternatively, that the data are not public under Minnesota Statutes, section 13.393?

In her opinion request, Ms. Thomson stated that her law firm, Kennedy and Graven, is a private corporation that contracts for services with the City of Mounds View. Ms. Thomson did not provide the Commissioner with a copy of the contract nor did she provide any specifics about the contract.

Minnesota Statutes, section 13.05, subdivision 11, applies when a government entity, such as the City, enters into a contract with a private person to perform any of its functions. It went into effect on August 1, 1999. Clause (a) states:

...the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of [Chapter 13] and that the private person must comply with those requirements as if it were a government entity.

Clause (b) of section 13.05, subdivision 11, states:

This subdivision does not create a duty on the part of the private person to provide access to the public if the public data are available from the government entity, except as required by the terms of the contract.

Ms. Thomson wrote in her opinion request:

The firm contends that it generally is not subject to any requirements of [Chapter 13], including but not limited to the obligation to allow inspection of data.

The firm recognizes, however, that some of its clients are subject to [Chapter 13] and that, with respect to data that is generated by the firm on behalf of such clients, the firm is obligated to assist its clients in handling that data consistent with [Chapter 13]. Data that is generated by the city attorney and provided to the City is government data, and the firm recognizes the City's responsibility to respond to requests for such data. The firm regularly cooperates with its clients on such requests by providing the client with copies of documents in the firm's files for that client.

The Commissioner has the following comments. In section 13.05, subdivision 11, the Legislature intended that parties such as Kennedy and Graven be subject to Chapter 13. Since the Commissioner does not have access to Kennedy and Graven's contract with Mounds View, it is not possible for him to determine if the provision required by section 13.05, subdivision 11, is included in the contract. If it is, all of the data Kennedy and Graven creates, collects, etc., in performing those services are subject to Chapter 13. In addition, regarding the requirements of Chapter 13 to which the law firm is subject, it must comply as if it were a government entity.

If the provision required by section 13.05, subdivision 11, is not contained in the contract, and the contract went into effect after August 1, 1999, its presence nonetheless should be inferred to give effect to the Legislature's intent. The language in subdivision 11 is mandatory so its omission would pose a problem for both Mounds View and Kennedy and Graven for which there are two possible remedies. The first is to infer the term's presence in the contract. The second is to find the contract void or voidable. The Commissioner finds it preferable to keep the contract in effect and infer the presence of the above provision rather than voiding the contract in its entirety.

Thus, if the contract between Kennedy and Graven and the City went into effect after August 1, 1999, and if the requested data are data Kennedy and Graven created, collected, etc., in performing legal services for Mounds View, those data appear to be subject to Chapter 13. As discussed above in the analysis for Issue 1, pursuant to section 13.03, subdivision 1, any such data are public unless otherwise classified. The law firm must provide access to any requested data that are public (or private if the individual requesting the data is the data subject).

The Commissioner wishes to draw attention to clause (b) of section 13.05, subdivision 11, which provides that, unless the contract states otherwise, there is not a duty on the private person to provide access to public data to the public if the public data are available from the government entity.

In her opinion request, Ms. Thomson specifically referred to section 13.393. This provision governs certain types of data generated by an attorney acting in a professional capacity for a government entity, and permits those data to be withheld from disclosure because they are not regulated by Chapter 13. A decision to deny access to data pursuant to section 13.393 or another provision of statute or federal law that classifies the data as not public, lies with both the City and Kennedy and Graven. In this case, the Commissioner does not have sufficient information to determine whether it is appropriate for the City to invoke 13.393 or other provisions.

As stated above, the language in section 13.05, subdivision 11, became effective on August 1, 1999. If the contract between Kennedy and Graven precedes August 1, 1999, the Commissioner cannot be certain how the data might be classified. The answer primarily depends on whether there is any language in the contract that specifies how the data are classified. It is also possible that section 13.05, subdivision 6, applies. This provision applies to situations in which the contract requires that the government entity make data on individuals available to the contracting party. The Commissioner does not know if this provision applies.

Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Thomson raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: September 27, 2001