Discussion:

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:

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: