October 5, 2001; School District 194 (Lakeville)
10/5/2001 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: Minnesota Statutes, section 13.43, subdivision 15, was enacted in 2002, after this opinion was issued. It supersedes the conclusion the Commissioner reached here. Facts and Procedural History:For purposes of simplification, the information presented by the government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of IPA and, with the exception of any data that are not public, are available for public access. On August 16, 2001, IPA received a letter from Maggie R. Wallner and Kimberly Hewitt Boyd, attorneys representing Independent School District 194, Lakeville. In this letter, Ms. Wallner and Ms. Hewitt Boyd asked the Commissioner to issue an advisory opinion regarding the dissemination of certain data maintained by the District. A summary of the facts of this matter follows. According to Ms. Wallner, the District conducted an investigation of an employee (or employees) whom it suspected of wrongdoing. Other District employees provided the District with information during the course of its investigation. The only other detail Ms. Wallner provided regarding the nature of the allegations was that the District made a report to the State Auditor pursuant to Minnesota Statutes, section 609.456. Ms. Wallner further stated that the District plans to make a report of a possible crime to the Lakeville Police Department. Issue:In their request for an opinion, Ms. Wallner and Ms. Hewitt Boyd asked the Commissioner to address the following issue:
Discussion:Given that Ms. Wallner referenced Minnesota Statutes, section 609.456, subdivision 1, the Commissioner assumes that the nature of the allegations against the employee(s) is as described in that statute, namely, evidence of theft, embezzlement, or unlawful use of public funds or property. Data about public employees are classified pursuant to section 13.43. Subdivision 2 of section 13.43 enumerates the personnel data that are public and subdivision 4 classifies most other personnel data as private. Subdivision 4 also states that personnel data may be released pursuant to a court order, with certain exceptions that do not appear to apply here. Accordingly, the data about the suspect employee(s) and the other employees are private data, and, under section 13.43, may not be released without a court order or the employees' consent. However, pursuant to section 13.05, subdivisions 3 and 9, the District may disseminate private or confidential data if specific statutory authority exists for the data to be disclosed. Upon review, the Commissioner did not identify any specific statutory authority for the District to provide the data described directly to the local law enforcement agency. There are provisions that may be applicable on the periphery of this kind of situation; for example, section 6.67 authorizes a public accountant to make a report of a discovery of wrongdoing by a public employee to the state auditor and the county attorney. However, there does not appear to be any specific authority for the District to disseminate the data, which are private under section 13.43, to the local police department without consent or a court order. Furthermore, in general, when private and confidential data are collected by a government entity from and about the data subject (triggering a Tennessen Warning notice - see section 13.04, subdivision 2), the existence of statutory authority for the dissemination of the data is not sufficient; the Tennessen Warning must have included the identity of the entity/person authorized to receive the data. However, a 2000 Minnesota Court of Appeals decision puts the application of the section 13.04, subdivision 2, notice requirement in doubt. (See Kobluk v. University of Minnesota, 613 N.W.2d 425 (Minn. App. 2000.) Whether a Tennessen Warning notice was provided to the employees in this case or not, because private data are involved, the Minnesota Government Data Practices Act requires that there be specific authority before data can be shared, even in the case of suspected theft, embezzlement or unlawful use of public funds. See Minnesota Statutes, section 13.05, subdivision 4 (b). Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Wallner and Ms. Hewitt Boyd is as follows:
Signed:
David F. Fisher
Dated: October 5, 2001 |
Data subjects
Data subjects
Educational data
Educational data
Personnel data
Tennessen warning
Tennessen warning
Criminal charges against employee
Law enforcement
Employment setting
Limitation on collection/use of data (13.05, subd. 4)
