Facts and Procedural History:

On May 14, 2003, IPAD received a letter from Kevin Rupp and Margaret Skelton, attorneys for Independent School District 709, Duluth. In their letter, Mr. Rupp and Ms. Skelton asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains.

A summary of the facts is as follows. In their letter, Mr. Rupp and Ms. Skelton wrote:

On May 14, 2003 the School District's internal auditor published the final internal audit of East High School's Boy's Hockey Student Activity Sub Account (hereinafter internal audit )....A separate report which outlines the circumstances which led to the formal internal audit report was also completed by the internal auditor on May 14, 2003. This report is entitled Review of the East Boy's Hockey Wreath Sale and Additional Fee Assessment (hereinafter Wreath and Fee Report ).

The internal auditor conducted interviews of District employees to obtain information for her reports. Other than the identity of the complainant(s), the private personnel data at issue were not provided to the auditor with the assurance that the identity of the person providing the data would remain private. Minn. Stat. section13.392, subd. 2.

Pursuant to [Chapter 13], a newspaper has requested information regarding the East Boy's Hockey wreath sale and fee assessment. This information is encompassed in the Wreath and Fee report.

Issues:

In their request for an opinion, Mr. Rupp and Ms. Skelton asked the Commissioner to address the following issues:

Does the Wreath and Fee Report contain data that relate to an internal audit within the meaning of Minnesota Statutes, section 13.392? Does the Wreath and Fee Report contain private personnel data or any other data that are not public or non-public under Minnesota Statutes, Chapter 13? If the Wreath and Fee Report contains data that relate to an internal audit within the meaning of Minnesota Statutes, section 13.392, do the private personnel data on employees in the report or other not public or nonpublic data become public once the final audit report is published? If the private personnel data or other not public or non-public data in the Wreath and Fee Report do not become public, pursuant to Minnesota Statutes, section 13.392, once the final audit report is published, is the private personnel data in the report so intertwined with any public information that the report cannot be redacted and released?

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Discussion:

Issue 1:

Does the Wreath and Fee Report contain data that relate to an internal audit within the meaning of Minnesota Statutes, section 13.392?

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Section 13.392 classifies internal auditing data. Subdivision 1 of section 13.392 states:

Data, notes, and preliminary drafts of reports created, collected, and maintained by the internal audit offices of state agencies and political subdivisions, or persons performing audits for state agencies and political subdivisions, and relating to an audit or investigation are confidential data on individuals or protected nonpublic data until the final report has been published or the audit or investigation is no longer being pursued actively...

In their opinion request, Mr. Rupp and Ms. Skelton wrote:

We are also of the opinion that the Wreath and Fee Report is data relating to an internal audit under Minn. Stat. section13.392, Subd. 1. The data in the report was collected and maintained by the District's internal auditor. The report documents the circumstances which resulted in the internal audit and thus the data relates to the audit and investigation....

The Commissioner agrees with Mr. Rupp and Ms. Skelton that data in the Report relate to an internal audit. As stated above, section 13.392 classifies data, notes, and preliminary drafts of reports created, collected, and maintained by persons performing audits for political subdivisions, as well as data relating to an audit or investigation. Here, the District's Internal Auditor received a complaint about the East Boy's Hockey Wreath Sale. She then received a complaint about both the wreath sale and the program's participation fees. The District administration directed her to review the wreath sale procedures and participation fees, and to audit the East Boy's Hockey account. While the audit is not limited to data about the wreath sales, at least some of the sections in the Audit specifically refer to the Report. It is the Commissioner's opinion, therefore, that the data in the Report relate to the audit and are classified by section 13.392.

Issue 2:

Does the Wreath and Fee Report contain private personnel data or any other data that are not public or non-public under Minnesota Statutes, Chapter 13?

As discussed above, Minnesota Statutes, section 13.392, classifies data relating to an internal audit. Because the Report contains data that relate to an internal audit, the Commissioner is of the opinion that section 13.392 classifies the data in the Report. Pursuant to subdivision 1, the data are not public until the final report has been published, or the audit or investigation is no longer being pursued.

The Commissioner notes, however, that the situation here is complicated because the Report appears to contain data about District employees. Data about employees typically are classified pursuant to section 13.43 (personnel data). Subdivision 2 of section 13.43 enumerates the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private. Thus, if section 13.43 classifies the personnel data in the Report and some of those data are private, there exists a conflict or an overlap of data classifications. Section 13.392 provides that the data in the Report become public and section 13.43 provides that any private personnel data in the Report remain not public.

Minnesota Statutes, Chapter 645, provides guidance on statutory interpretation. Section 645.26, discusses irreconcilable provisions. Subdivision 1 states, in part, When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. Section 645.16 discusses legislative intent. In relevant part it provides, The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.

As Chapter 645 provides, it is important to try to give effect to both section 13.392 and section 13.43. By enacting section 13.392, the Legislature clearly determined there is a need to protect internal audit data prior to an entity's publication of the final report or until the entity is no longer pursuing the audit or investigation. However, the Legislature also determined that after either of those two actions have occurred, the data should become public. The Legislature's intent regarding section 13.43, the more specific of the two provisions, is that only certain personnel data are public, and that all other types are private. The kinds of personnel data that are public are stated clearly in section 13.43. The Commissioner is of the opinion that because the Legislature has dictated so specifically the types of personnel data that are public, it (the Legislature) did not intend for personnel data classified as private under section 13.43 to become public if they are contained in an audit or if they are other data treated as public under section 13.392.

The Commissioner concludes, therefore, that if the Report contains personnel data classified as private under section 13.43 - and the District is in the best position to make that determination - those data remain private after the final audit/report is published.

In determining the classification of personnel data in the Report, the District should be mindful of the fact that data related to employee complaints/charges and related disciplinary action are classified by section 13.43, subdivision 2(a), clauses (4) and (5). Subdivision 2(a)(4) provides that the existence and status of any complaints or charges are public. Subdivision 2(a)(5) provides that the following data are public: 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. Thus, if data in the Report relate to a complaint made against an employee, the name of the employee in connection with the fact that a complaint was made and the status of that complaint would be public. If, in relation to that complaint, disciplinary action is taken and a final disposition occurs (see section 13.43, subdivision 2(b)), additional data would become public.

Finally, Mr. Rupp and Ms. Skelton asked about the possibility of other data in the Report being classified as not public. As the Commissioner discussed above, in this situation, the District is in the best position to determine the classifications of the data in the Report. Therefore, without knowing the specific provision(s) Mr. Rupp and Ms. Skelton believe classify the data, the Commissioner is unable to comment as to whether any other types of data would remain not public after the final audit/report is published.

Issue 3:

If the Wreath and Fee Report contains data that relate to an internal audit within the meaning of Minnesota Statutes, section 13.392, do the private personnel data on employees in the report or other not public or nonpublic data become public once the final audit report is published?

The Commissioner answered this question in his discussion of Issue 2.

Issue 4:

If the private personnel data or other not public or non-public data in the Wreath and Fee Report do not become public, pursuant to Minnesota Statutes, section 13.392, once the final audit report is published, is the private personnel data in the report so intertwined with any public information that the report cannot be redacted and released?

When a government entity is faced with redacting a document containing not public and public data, it is important for the entity to review the document carefully to determine whether the release of any of the data may result in the inappropriate release of not public data. Government entities are in the best position to make such determinations because they have all of the data available and are knowledgeable about the circumstances.

In Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509 (Minn.App. 1993), the Minnesota Court of Appeals addressed the issue Mr. Rupp and Ms. Skelton raised. The Court held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See 03-001, 00-065, 96-002, and 94-034.)

Therefore, if it is not possible for the District to appropriately redact the Report, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, Inc., maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately. Given the clear presumption of openness in Chapter 13, the District should make every effort to avoid a situation where it must withhold an entire document from the public.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Rupp and Ms. Skelton raised is as follows:

The Wreath and Fee Report contains data that relate to an internal audit within the meaning of Minnesota Statutes, section 13.392. The District must determine whether the Wreath and Fee Report contains private personnel data or any other data that are not public or non-public under Minnesota Statutes, Chapter 13. If the District determines that the Report contains data classified as private pursuant to section 13.43, those data remain private once the final audit report is published. The Commissioner is unable to comment about the classification of other not public data in the Report. See answer to Issue 2. If it is not possible for the District to redact the Report without releasing not public data, the District may withhold the Report.

Signed:

Brian J. Lamb
Commissioner

Dated: June 25, 2003

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