March 28, 1995; City of Virginia
3/28/1995 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On March 8, 1995, PIPA received a letter from Mr. Gregg M. Corwin, an attorney acting on behalf of his client, Mr. Nick Dragisich, City Administrator for the City of Virginia, hereinafter City. Mr. Corwin enclosed copies of newspaper articles which were published in the Mesabi Daily News on February 28, 1995, and March 1, 1995. According to the information Mr. Corwin provided, the Virginia City Council met in a closed meeting in order to evaluate Mr. Dragisich's job performance. Subsequent to that council meeting, Mr. Dragisich met with Ms. Carolyn Gentilini, the city council president, to discuss various aspects of Mr. Dragisich's employment. Following that meeting, Ms. Gentilini gave an interview to the Mesabi Daily News. The February 28 article provided by Mr. Corwin includes the interview with Ms. Gentilini, in which she discussed details of the conversation she had with Mr. Dragisich. According to the newspaper article, Ms. Gentilini told the newspaper that she had telephoned Mr. Dragisich to arrange a meeting and was quoted in the article as having told him in the phone conversation ...that he should think about what he would accept as a termination settlement and resign.... She said that they then met to discuss a severance package. The article said that initially Ms. Gentilini refused to be interviewed, but that she later changed her mind because a number of people in town had heard about the meeting. When she agreed to the interview with the newspaper, she ...also [agreed] to turn over her typewritten notes about last week's events. The events referred to apparently are the closed council meeting, and Ms. Gentilini's conversations with Mr. Dragisich. The article apparently contains quotations from Ms. Gentilini's written notes concerning those discussions and conversations, both about and with Mr. Dragisich. The March 1 article provided by Mr. Corwin refers to the discussion of Mr. Dragisich's performance at the closed council meeting. The article also refers to data from a ...confidential report summarizing the evaluation forms filled by councilors and the mayor.... In addition, it provides detailed information regarding the council members' individual evaluations of Mr. Dragisich's performance, from a ...four-page document received by the Mesabi Daily News.... According to Mr. Corwin, the ...President of the City Council gave a copy of a confidential report summarizing the evaluation forms filled by counselors [sic] and the Mayor to the newspaper. Mr. Corwin stated that the information published in the article ...is not simply a summary of a performance evaluation, but the actual evaluation and raw data. In his letter requesting this opinion, Mr. Corwin questioned whether the City disseminated private data in violation of Minnesota Statutes Chapter 13, as described in the Issues section below. In response to Mr. Corwin's request, PIPA, on behalf of the Commissioner, wrote to the chief administrative officer of the City, as is its usual practice. However, the individual who requested this Commissioner's advisory opinion is the attorney for the chief administrative officer of the City of Virginia. Therefore, copies of the letter were sent to Mr. Leroy A. Guss, Mayor of the City of Virginia, and to Ms. Gentilini, in her capacity as the president of the Virginia City Council. The purposes of this letter, dated March 9, 1995, were to inform the City of Mr. Corwin's request, to ask him or Virginia's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On March 17, 1995, PIPA received letters in response from Mr. Thomas Butorac, attorney for Virginia, and from Ms. Gentilini, via facsimile transmission. In his response, Mr. Butorac stated that in regard to the first issue, [i]t was the City's position that this conversation is not data protected under Chapter 13. This conversation was not an evaluation of Mr. Dragisich's performance or any type of disciplinary action. It was merely an informal conversation between the City Administrator and the Council President concerning City business. Council President Gentilini states that Mr. Dragisich had talked to a number of people about their conversation, in fact, other council members had talked to her and told her they knew about the meeting and its content. Therefore, her belief was that this conversation had become public knowledge and that talking about it publicly was appropriate. In response to the second issue, Mr. Butorac stated that ...it is the City's position that the City has taken every precaution to insure that no protected data would become public. The City has no knowledge of how Mr. Dragisich's evaluation was reported in the newspaper. In any event, it is further the City's position that, under the Open Meeting Law 471.705, Subd. 1(d), 3(d) [sic], allows closure of a meeting to evaluate an employee. Upon completion of the evaluation, a summary of the meeting must be given publicly. It is the City's position that anything that was reported in the newspaper was merely a summary of the meeting which is public under Chapter 13. In her response, Ms. Gentilini stated that ...a number of people had asked me about the meeting [with Mr. Dragisich], and it was apparent that it was common knowledge. That is why I agreed to give the newspaper an interview. As to Mr. Corwin's assertion that she was the source of the performance evaluation, Ms. Gentilini stated that I have no knowledge of how the newspaper received this information. As part of its response, the City submitted a copy of a Mesabi Daily News article, dated March 15, 1995, in which the newspaper's executive editor, Mr. Bill Hanna, is quoted as saying [t]he evaluation information was not provided by [Ms. Gentilini].... Issues:
In his request for an opinion, Mr. Corwin asked the Commissioner to address the following issues:
Discussion:
Although the descriptions of the data in question contained in the submissions to the Commissioner were somewhat confusing, it appears that the data at issue are (1) the typewritten notes made by Ms. Gentilini concerning Mr. Dragisich's employment by the City and (2) the data concerning the city council's evaluation of Mr. Dragisich's performance. The notes apparently contain details of discussions Ms. Gentilini had at city council meetings, and in conversations with Mr. Dragisich. The performance evaluations appear to consist of a summary of the council's evaluation, and also individual council members' specific ratings of his performance based on various criteria, the details of which were published in the Mesabi Daily News on March 1, 1995.
Mr. Butorac stated that it is the City's position that the contents of an informal conversation between Mr. Dragisich and Ms. Gentilini ...is not data protected under Chapter 13. Other than to say that the conversation was neither an evaluation of Mr. Dragisich's performance nor any type of disciplinary action, Mr. Butorac did not elaborate on the reasons why the data in question were not protected under Chapter 13. It is possible that because the data were generated in a conversation, the City views these data as falling under the rule established in Keezer v. Spickard, 493 N.W. 2d 614 (Minn. Ct. App. 1992.) In Keezer, the court held that ...information is not 'government data' until the information is recorded somewhere other than the human brain. (Keezer, at 618.) (Emphasis added.) If Ms. Gentilini's recollection of the conversation at that meeting weren't recorded in any form, then under Keezerit might be argued that she did not disseminate government data to the newspaper. However, the February article referred to and quoted from her typewritten notes. Pursuant to Section 13.02, subdivision 7, as an official of the City, Ms. Gentilini's written notes fall within the definition of government data. As those data were recorded by an official of the City, the question is what is the proper classification of those government data. Pursuant to Section 13.43, subdivision 1, ...'personnel data' means data on individuals collected because the individual is or was an employee of...a state agency, statewide system or political subdivision.... Subdivisions 2 and 3 of this Section list personnel data which are classified as public; subdivision 4 classifies all other personnel data as private. Nothing in Section 13.43 classifies data which reflect discussions between Mr. Dragisich and Ms. Gentilini about his proposed termination and possible severance package as public. If the City and Mr. Dragisich had actually reached an agreement about severance, the terms of that agreement would be public. However, the data are notes about preliminary negotiations about a possible agreement, and the data therefore are private government data, and may not be disclosed except as provided under Section 13.05, subdivisions 3 and 4. The same criteria apply to the question of whether the data in the detailed performance evaluation, published by the Mesabi Daily News on March 1, 1995, are private government data. Nothing in Section 13.43 classifies those data as public, so therefore they are private data. The City raised the point that Mr. Dragisich himself had discussed his conversation with Ms. Gentilini with a number of people, and that therefore Ms. Gentilini believed that ...talking about it publicly was appropriate. The City did not clarify just who those people were or what relationship, if any, they have with the City, or how Mr. Dragisich's use of data about himself is limited by Chapter 13. While it is understandable for the City to take that position, it is not a conclusion which is allowed under Chapter 13. Government entities' data practices, including the collection, storage, use and dissemination of private and confidential data, are regulated by Chapter 13 and other applicable statutes and rules. However, once private data are disseminated to the data subject, the data subject's use and dissemination are not regulated. The fact that Mr. Dragisich may have discussed or otherwise disseminated the data in question does not alter the City's responsibilities under Section 13.05. As to the second issue, Mr. Butorac stated that it was the City's position that, pursuant to Section 471.705, the Open Meeting Law, the City properly discussed Mr. Dragisich's performance at a closed meeting of the city council, and that [i]t is the City's position that anything that was reported in the newspaper was merely a summary of the meeting which is public under Chapter 13. Section 471.705, subdivision 1d(d) does state that a public body may hold a closed meeting to discuss the job performance of an individual subject to its authority. However, it also states that [a]t its next open meeting, the public body shall summarize its conclusions regarding the evaluation. (Emphasis added.) Even if the detailed performance evaluation data could be construed to be a summary of the evaluation, the public body is authorized to disseminate a summary of the data to the public at the next open meeting of the body. Providing a summary or details of a summary directly to a reporter is not a dissemination authorized by Section 471.705. Finally, there is a factual dispute regarding the newspaper's source of the detailed performance evaluation, including the detailed evaluations done by each councilor. Mr. Corwin stated that Ms. Gentilini provided the newspaper with a copy, and the City says she did not. Also, according to the March 15 newspaper article, the paper's executive editor, Mr. Hanna, stated that Ms. Gentilini was not the source of the evaluation. However, the City is obligated under Section 13.05 and Minnesota Rules Chapter 1205 to secure private and confidential data on individuals. The data in question were apparently publicly disseminated by an unknown agent of the City, and the City is accountable for the dissemination. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Mr. Corwin is as follows:
Signed: Elaine S. Hansen
Dated: March 28, 1995 |
Personnel data
Closed meetings
Open Meeting Law
Government data (13.02, subd. 7)
Employee evaluation summary
Mental impressions (Keezer v. Spickard, 493 N.W.2d 614)
Employee evaluation summary
Security safeguards (13.05, subd. 5)
Recorded
