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Advisory Opinion 96-031

July 17, 1996; City of Red Wing

7/17/1996 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, with the exception of data that are not public, are available for public access.

On May 28, 1996, PIPA received a letter dated May 22, 1996, from Patricia Kuderer, an attorney representing the City of Red Wing, hereinafter Red Wing. In her letter, Ms. Kuderer requested that the Commissioner issue an advisory opinion regarding the classification of certain data maintained by Red Wing. (On June 14, 1996, PIPA wrote to the employee who is the subject of the data in question, and invited her/him to submit any comments regarding this opinion request. No comments were received from the employee.) (In subsequent correspondence, Ms. Kuderer was informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

A summary of the facts surrounding this matter is as follows. In January of 1996, two individuals filed a complaint, containing several different allegations, against an employee of Red Wing. Red Wing then retained a private investigator who conducted an investigation and issued an investigative report to the Acting Chief of Police. Ms. Kuderer wrote, Thereafter, the Chief reviewed the report and documentation, and issued his own Report, finding the [employee] exonerated of one charge, two other charges not sustained, and one charge sustained. The [employee] was disciplined for the charge that was sustained.

Ms. Kuderer wrote:

Pursuant to Minn. Stat. section 13.43, subd. 2, the City released redacted copies of the Chief's report and the investigative report, keeping certain data confidential on the unsustained and exonerated charges since no disciplinary action was imposed, but releasing the name of the employee complained about, the fact that the complaint was investigated, and the fact that the employing government entity determined that no disciplinary action would be taken. All information pertaining to the fourth, sustained allegation, however, was released to the Complainant...

Ms. Kuderer then stated the data requestors are requesting release of all data and information arising out of these facts.

The Commissioner did receive additional comments from the data requestors as to why they believe they are entitled, pursuant to Minnesota Statutes Section 13.43, subdivision 2, to the complete report. They wrote:

...the City sustained part of the complaint, and by their definition of exonerated , also sustained another portion. Both portions are significantly and directly related to the complaint as a whole. In addition, the two allegations that were not sustained are specifically addressed in [the employee's] deposition testimony which we already have in our possession. The investigation and report does not contain confidential information that we, the complainants, are not entitled to.


Issue:

In her request for an opinion, Ms. Kuderer asked the Commissioner to address the following issue:

What is the classification of data about a public employee which relate to a substantiated charge of misconduct for which discipline was imposed, when the same set of facts also lead to a finding of exoneration (no discipline imposed) on another charge, and of unsubstantiated (no discipline imposed) on two other charges?



Discussion:

The applicable statutory section that addresses the issue raised by Ms. Kuderer is Minnesota Statutes Section 13.43. This section provides for the treatment/classification of data collected and maintained by a government entity because an individual is or was an employee of that entity.

Section 13.43 provides that certain data about public employees are public, and that all other personnel data are private. Of relevance to this opinion, Subdivision 2 (a) clauses 4 and 5, provide that the following data are public: the existence and status of any complaints or charges against the employee; and the final disposition of any disciplinary action, together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body.

In addition, Section 13.43, subdivision 2 (b), defines, for the purposes of Chapter 13, the term final disposition as:

...when the state agency, statewide system, or political subdivision makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator.

Thus, if no final disposition, as defined in subdivision 2 (b), regarding a disciplinary action has occurred, only those data relating to the existence and status of a complaint or charge are public. Further, if no disciplinary action has been taken, there cannot be a final disposition.

Ms. Kuderer's question appears to relate primarily to the data contained in the two reports created as a result of the investigation, i.e., the report issued by the private investigator and the report issued by the Police Chief. In the report created by the private investigator, eight separate allegations were discussed. It appears that the Chief, in his report, took those eight allegations and divided them into four categories. He wrote, The allegations of misconduct can be broken down into four (4) main categories... Section I of his report provides an overview and describes the four categories, Section II summarizes the complaint and investigation relating to each category, and Section III discusses the conclusions, and the underlying rationale, reached in each category of alleged misconduct.

Based on the information contained in the reports and the written reprimand issued to the employee (a copy of which was provided to PIPA by Ms. Kuderer), it appears that disciplinary action was taken against the employee by Red Wing in relation to only one of the four categories of misconduct. Therefore, pursuant to Section 13.43, the public data relating to that charge are the existence and status of the complaint or charge, the final disposition together with the specific reasons for the action, and data documenting the basis of the action. In regard to the other three categories of misconduct, the investigation of which did not lead to disciplinary action taken by Red Wing, fewer data are accessible to the public; that is, the existence and status of the complaint or charge.

(It should be noted that Red Wing did not discuss whether the elements required for a final disposition have occurred in this situation. However, based on the fact that data have already been released to the public, the Commissioner assumes that 1) Red Wing has made it final decision about the disciplinary action, and 2) any related arbitration proceedings have concluded or the employee failed to elect arbitration within the time frame provided by the collective bargaining agreement, if the employee is covered by a collective bargaining agreement. See Section 13.43, subdivision 2 (b).)

In comments submitted to the Commissioner, the data requestors, who also happen to be the complainants, appeared to make two separate arguments as to why they should be granted access to all the data in both reports. One is that at least two portions of the complaint are significantly and directly related to the complaint as a whole. While this may be so, Section 13.43, expressly links the public treatment of certain data to the imposition of disciplinary action. In the situation-at-hand, disciplinary action was taken against the employee in relation to only one of the categories of misconduct.

The second argument made by the data requestors appears to be that because they already have the information from deposition testimony relating to the two unsustained charges, those same data should be accessible from Red Wing. However, the fact that a deposition has been taken does not necessarily mean it has been filed with a court, or has been entered into evidence (in either and/or both of those scenarios, the information in the deposition would be accessible to the public via the court record keeping system). Furthermore, even if the data are treated as public by the court system, there is no provision in Section 13.43 stating that personnel data made public in a court file are also public in the government entity which maintains the data. In addition, although the data requestors appear to have information from the depositions, they do not have data regarding how the private investigator and the Police Chief used the same and similar information to reach a conclusion that disciplinary action was not warranted.

One final note is necessary. Although the data requestors in this situation are also the complainants, and they did provide much of the data used by the Police Chief in reaching his conclusions, the data requestors are, for purposes of Chapter 13, members of the public. Consequently, as complainants, they are not entitled to gain access to private data other than the statement(s) they provided to the law enforcement agency. (See Section 13.43, subdivision 2 (d).)


Opinion:


Based on the correspondence in this matter, my opinion on the issue raised by Ms. Kuderer is as follows:

In regard to the charge of misconduct for which discipline was imposed against the employee, pursuant to Minnesota Statutes Section 13.43, subdivision 2, the following data which relate to that charge are public: the existence and status of the complaint or charge, the final disposition together with the specific reasons for the action, and data documenting the basis of the action. All other data relating to that charge are private.

In regard to the three other charges of misconduct for which no discipline was imposed, only the following data relating to those charges are public: the existence and status of the complaints or charges. All other data relating to those charges are private.


Signed:

Elaine S. Hansen
Commissioner

Dated: July 17, 1996



Personnel data

Same data, different entities, different classification

Complainant access to data

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