Facts and Procedural History:

On October 28, 1994, PIPA received a request for an opinion from Mr. Michael Jordan, Commissioner of the state Department of Public Safety, hereinafter Department. In his request, Commissioner Jordan presented the following information. Recently, the Department has received requests from journalists for certain data relating to the disciplinary actions taken against individuals employed by the Department as state troopers with the Minnesota State Patrol.

In response to those requests, the Department asked the Commissioner to address the two questions described in the Issues section below. To allow the Commissioner to fully address the questions raised in those issues, the Department submitted copies or summaries of thirteen files involving complaints and charges against thirteen state troopers. All of those files involve situations where the Department has made a final decision about disciplinary actions involving these thirteen individuals. For purposes of reference, the Department labeled these files as Exhibits A through M.

The Department also provided a copy of Article 15 from the current labor agreement between the State of Minnesota and certain state employees including the Minnesota State Patrol Troopers' Association. Under the terms of this agreement, after a certain period of time, an employee may ask that the written records relating to some types of discipline be removed from the employee's personnel file. The agreement also allows the Department to maintain records of prior incidents of disciplinary actions after the records are removed from the personnel file.

According to the Department, Exhibits A-G are personnel data identifying employees who may yet exercise their rights under the labor agreement to ask that data be removed from their personnel files. In regards to these exhibits, the Department asked the Commissioner, in addition to addressing the issues described below, to answer certain general and specific questions relating to the classification and redaction of other data in those exhibits. The Department described Exhibits H-K as personnel data identifying employees who have not yet exercised their rights to have the data removed from their personnel files. However, these exhibits also present a series of detailed issues because of their content. The Department stated that Exhibits L-M are personnel data identifying employees who have asked that the data be removed from their personnel files. The Department has done so but now maintains the files in its Internal Affairs section. In the particular case of Exhibit M, the file involves a situation where, by agreement, the Department rescinded a suspension involving the employee and restored lost pay benefits and so forth.

In response to this submission, personnel of PIPA, on behalf of the Commissioner, conducted a detailed examination of each of the files provided by the Department. The objectives of that examination were to determine answers to the issues presented by the Department and to determine what answers, if any, could be found for the Department's additional detailed questions.

Issues:

Discussion:

In Exhibits A-L, disciplinary action was proposed by the Department by sending an order for and notice of discipline to the employee. In response to the order and notice, eleven of the twelve employees either did not elect arbitration within the time frame contemplated in the collective bargaining agreement or specifically agreed, after some negotiation, to accept imposition of a disciplinary action as part of a settlement agreement with the employer. In the case of employee L, the matter went to arbitration and the disciplinary action was upheld. In the case of employee M, a proposed disciplinary action against the employee was later rescinded by mutual agreement of the employee and the Department. This agreement is memorialized in a Settlement Agreement which is part of Exhibit M.

In its request to the Commissioner, the Department noted that the data recording and supporting the disciplinary actions described in the exhibits have been removed from each individual's personnel file or may in the future be removed from the employee personnel file. The employee's right to request removal from the personnel file is a right conferred by the terms of the collective bargaining agreement that the Department has with some of its employees. Although the agreement provides for removal of certain kinds of data from the personnel file, it authorizes the Department to maintain these data elsewhere in the Department. It appears that in these instances when an employee requests removal of the data from the personnel file, the data are physically moved from the personnel or human resources section of the Department to its Internal Affairs section.

However, for purposes of the operation of the public access provisions of Chapter 13, these twelve particular sets of data are maintained by an entity subject to Chapter 13 and, to the extent that the data in the twelve exhibits are public, those data are accessible by the public. The fact that the Department has agreed in the collective bargaining agreement to give employees the right to ask that a part of the employee's personnel file not kept by the personnel section of the Department does not affect the right of the public to gain access to any public data that appear in that file no matter where the file is physically maintained.

If the contract term, giving the employee the right to request that certain data be removed from the personnel file, were interpreted to affect the public's right to gain access to public data, that particular interpretation of the term would be void as being against the clear public policy stated in Minnesota Statutes Sections 13.03, subdivision 1 and 13.43, subdivision 2. No matter where within the Department these particular sets of data are kept, they clearly meet the definition of the term personnel data, as stated in Minnesota Statutes Section 13.43, subdivision 1, and to the extent that they constitute public data, they must be made available to the public.

In the instance of Exhibits A-L, there has been a final disposition of a disciplinary action and therefore certain data within each of those exhibits are public data. In the instance of Exhibit M, the Department, after negotiating with the employee, decided to rescind a proposed disciplinary action and entered into a settlement agreement with the employee to settle the dispute. As no disciplinary action was imposed against the employee identified in Exhibit M, the only data about that employee that are public are: the employee's name; the fact that complaints or charges were made against the employee; the fact that the status of the Department's handling of those complaints or charges was a determination that no disciplinary action was taken; and the terms of the settlement agreement resolving this dispute between the employee and the Department. The classification of the data contained in the other twelve exhibits is the second issue presented by the Department.

Once it has been determined that a final disposition of a proposed disciplinary action against an employee has occurred, the following data become public: data that describe the final disposition; data that are or that describe the reasons for the disciplinary action; and data that document the basis for the action. In requesting this opinion and in raising specific questions in addition to the issues described above, the Department has asked the Commissioner to specifically address, in all of twelve of these exhibits, just exactly what data constitute specific reasons for the [disciplinary] action and data documenting the basis for the action. Given the content of these exhibits and the nature of the process followed by the Department in making and recording disciplinary decisions, the Commissioner, except in general terms, is not able to respond to that specific request.

Taken together, the exhibits contain data that are made up of a variety of reports, memoranda, summaries of investigative notes and transcripts of interviews including interviews of other Department employees, employees of other government jurisdictions, the employee being investigated and members of the public. In many instances the exhibits contain settlement agreements that record the fact that a proposed disciplinary action became final because the employee, the Department and the employee's labor organization agreed to imposition of a disciplinary action by entering into an agreement to resolve the dispute. In making these twelve disciplinary decisions, at least as exemplified in the exhibits, the Department did not make detailed findings of fact and conclusions, such as those that might be found in a court case or in the record prepared by an administrative law judge as part of a Chapter 14 contested case matter.

In some of these exhibits, the reasons the Department decided to impose disciplinary action and the data that document the basis for that action are quite clear. Perhaps the best example of that kind of clarity is an admission by the employee that s/he committed the wrongful act being investigated and knew that the act was improper. In many of these exhibits, although it seems clear that the employee's conduct warranted discipline, it is not clear what part of the interviews and other investigative data the Department's management relied on to make the disciplinary decision. It could very well be the case that all of the investigative data in each of the files, taken as a whole, were what led to the Department's decision to impose discipline.

Although the Commissioner has the objective of making her opinions as helpful and complete as possible, she does not have the desire or the means to try to enter the minds of the decision-makers at the Department who reviewed the data in the reports, memoranda and interview transcripts as described above and decided which of those data constituted their reasons for ordering a disciplinary action and what detailed data supported that decision. Clearly the best persons to make those determinations are the management employees of the Department who made the actual decision to impose discipline. It is they who know exactly what data in these exhibits lead them to conclude that disciplinary action was appropriate in each of the twelve instances presented here. It is the actual data they relied on that will constitute their reasons for imposing the disciplinary action and the data documenting the basis for that action.

Although the Commissioner is not willing, given the data presented to her, to try to make the detailed decisions about what constitutes the reasons for and the data that document the basis for the Department's decisions to discipline these twelve employees, she is mindful of the legal effects of her opinions and, in the interest of assisting the Department, offers the following comments for further examination by the Department and its attorneys.

As mentioned earlier, a number of the exhibits contain settlement agreements entered into by the employee, the Department and the association representing the employee. The terms of settlement agreements resolving disputes arising out of the employment relationship are always public data for purposes of Chapter 13. (See Minnesota Statutes Section 13.43, subdivision 2 (a).) Wherever a settlement agreement appears in these exhibits, the complete contents of that agreement are public data.

Often the exhibits contain data collected from and about complainants and witnesses. Under the rule established in the Demerscase, data about complainants that appear in files concerning investigations of complaints or charges against public employees are public data regardless of whether the complaint or charge resulted in a disciplinary action. (See Demers v. City of Minneapolis, 468 N.W. 2d 71 (Minn. 1991).) This rule would applies to data about witnesses, other than witnesses who are also employees of the Department. A possible exception to the rule that data on complainants and witnesses are public would involve situations where the allegations against the employee involve some kind of harassment. Minnesota Statutes Section 13.43, subdivision 8 allows for the protection of data about complainants and witnesses where the allegation against the employee is some type of harassment. However, this provision may not apply in this instance because it appears that the Department, as part of the disciplinary process, provides identifying and other information about complainants and witnesses to its employees.

The exhibits often contain data about employees of the Department other than the employee who was disciplined. These data may be interviews with those employees relative to their actions in an incident involving the employee. The data may consist of statements that another employee allegedly did the same thing as was alleged against the disciplined employee and that the other employee was not disciplined. Unless these data document the basis for the disciplinary action taken against the disciplined employee, or unless they are public data documenting discipline against another employee, these data appear to be private personnel data on other employees of the Department.

Lastly, the exhibits contain data such as copies of accident reports, references to ongoing criminal investigations, logs of calls made to patrol stations, logs of radio transmissions and other forms of data that may be classified as not public under Minnesota Statutes Section 169.09, subdivision 13, Minnesota Statutes Section 13.82 or other statutory sections. If these data document the basis for the disciplinary action taken against the employee, they may be, notwithstanding other classifications assigned to them by other provisions of Minnesota Statutes, public data for purposes of Section 13.43. If they are not data that document the basis for the Department's decision to discipline these employees, then they would appear to retain their classification as not public under other statutory provisions.

Opinion: