October 12, 1995; Mahnomen County
10/12/1995 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation 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 August 23, 1995, PIPA received a letter requesting this opinion from X, an elected official of the County, in which he described his attempts to gain access to certain data the County maintained about him. X enclosed various documents relating to this issue. On August 31, 1995, PIPA, on behalf of the Commissioner, wrote to Franklin Thompson, Mahnomen County Auditor, and chief executive officer of the County. The purposes of that letter were to inform Mr. Thompson of X's request, to ask him to provide information or support for the County's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, X and Mr. Thompson were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On September 13, 1995, PIPA received a letter in response from Eric O. Boe, Mahnomen County Attorney. A summary of the detailed facts of the matter follows. According to X, on June 21, 1995, Betty Toso, a local abstractor, submitted a list of complaints and accusations against him to the County Board, at a regularly scheduled meeting of the Board. According to a copy of the minutes of that Board meeting, the Board discussed possible disciplinary action, and then voted to investigate Ms. Toso's complaints. The Board directed Gerald Paulson, then the County Attorney, to make arrangements for the investigation to be conducted by a neutral outside party. X stated that the investigation was conducted by Terry Shannon, police chief of Perham, Minnesota. According to X, Mr. Shannon interviewed several individuals on July 12, 1995. X declined to be interviewed by Mr. Shannon. According to the minutes of the July 19, 1995, County Board meeting, after the investigation had been completed, no disciplinary action was taken. According to X, he was denied access to a copy of the investigative report, which had been distributed to the Board members. Subsequently, X hired an attorney, Zenas Baer. On August 1, 1995, on X's behalf, Mr. Baer wrote to John I. Allen, Assistant County Attorney, who was then the Acting County Attorney, to request access to the report. Mr. Baer stated that it was his position that the report, having been discussed at an open meeting, was public, and therefore accessible to X. On August 4, 1995, Mr. Allen, in response to Mr. Baer, wrote I am new to this situation and I don't believe I have all the necessary information to make the decision at this time. X made subsequent unsuccessful attempts to gain access to the investigative report. In his response to the Commissioner, Mr. Boe did not offer a specific reason for the County's refusal to provide X with access to the report.
Issue:
In his request for an opinion, X asked the Commissioner to address the following issue:
Discussion:
The issue of whether X may gain access to the investigative report is determined by the classification of the data in the report. According to the information provided, Ms. Toso made allegations against X, which were investigated by an agent of the County. Clearly, pursuant to Minnesota Statutes Section 13.02, subdivision 7, the report contains government data, i.e., data which were collected, created, received, maintained or disseminated by any . . . political subdivision . . . . Section 13.03, subdivision 1, provides that all government data are presumed to be public unless otherwise classified by state or federal law.
X, as County elected official, may or may not be considered an employeeof the County. The classification of the data in question depends, in part, on whether or not the County considers him an employee. If X is an employee of the County, then it appears that the data in question are governed by Section 13.43, Personnel Data. Pursuant to Section 13.43, subdivision 1, personnel data are data on individuals collected because the individual is or was an employee of . . . [a] political subdivision . . . . Section 13.43 provides that certain data about public employees are public, and that all other personnel data are private. Section 13.43, subdivision 2, provides, in relevant part, that the existence and status of any complaints or charges against an employee, and details of any final disciplinary action taken (excluding data that identify confidential sources who are also employees), are public data. From the information provided, it appears that the Board did not take any disciplinary action. If that is the case, then the following data about the complaint are public: that a complaint had been made against X; that the complaint was investigated; and that no disciplinary action was taken. All other details and documentation of the complaint are private data, pursuant to Section 13.43, subdivision 4. Therefore, if X is a County employee, all of the data about him in the investigative report are either public or private personnel data. Pursuant to the rights of data subjects provided in Section 13.04, subdivision 3, X is entitled to gain access to the public and private data in the report which are about him. However, if X is notan employee, but rather an elected official without employee status, absent any statute or federal law that provides otherwise, the data in the investigative report about X, or other individuals who are not employees of the County, are public, pursuant to Section 13.03, subdivision 1. It should be noted that there are provisions in Chapter 13 which regulate data about elected officials. Section 13.33 provides that correspondence between individuals and elected officials is private, but may be made public by either the sender or the recipient. Clearly, an investigative report does not constitute correspondence. Section 13.60 provides that certain financial disclosure statements of elected or appointed officials are public data on individuals. Again, that Section does not apply to the investigative report. It should also be noted that Section 13.39 provides for situations in which government entities may treat government data that are otherwise classified, as confidential. However, the County, in its response to the Commissioner, did not offer that as its reason for denying X appropriate access to the report. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by X is as follows:
Signed:
Elaine S. Hansen
Dated: October 12, 1995
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Elected and appointed officials
Personnel data
Status as employees (13.601, 13.43)
Data subject access to personnel data
