Issues:

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

Discussion:

Issue 1

Pursuant to Minnesota Statutes, Chapter 13, are the following data government data: numerous images (including films and photographs) that are sexually explicit and/or pornographic in nature that are stored and maintained on the hard drives of laptop computers that were used by a Mn/DOT employee?

Government data are defined at Minnesota Statutes, section 13.02, subdivision 7, as all data collected, created, received, maintained or disseminated by any [government entity] regardless of its physical form, storage media or conditions of use.

In his comments to the Commissioner, [X's] attorney argued that the images are not government data, but rather are personal data. He noted the Commissioner's position in Advisory Opinion 01-075. The attorney wrote:

When an employee uses a government issued computer for personal reasons pursuant to [an entity policy that may authorize limited personal use of computers by its employees], that information never becomes government data. It remains personal data, which is outside the jurisdiction of the Commissioner and beyond the scope of the [Chapter 13].

He also wrote:

Presumably, the data was not generated during the course and scope of [X's] employment. Presumably, [X's] job duties did not include accessing such images with his/her computer. Presumably, [X] generated the data for personal reasons outside of the regular time and duties of his/her employment....

Thus, assuming the images are not of [X] and they contain no reference to [X] or other identifying data, the data is not personnel data and section 13.43 does not apply.

The Commissioner has the following comments. Here, the Department investigated and disciplined X regarding his/her use of Department laptop computers. Of specific relevance were the sexually explicit and/or pornographic images stored and maintained on the hard-drives of the computers. Ms. Bjornberg wrote, The fact that the images were stored and/or maintained on [X's] hard drives, does constitute, in part, the basis for the disciplinary action taken against [X]. In the Commissioner's opinion, this fact is a clear indication that the images are government data. The Department is maintaining the images (regardless of the context under which X collected them) to document action it took against X. Therefore, it does not seem reasonable for either X's attorney or the Department to argue that the data are personal (as the Commissioner discussed that term in Advisory Opinion 01-075), rather than government data.

Issue 2

If these images are government data, how are they classified pursuant to Chapter 13?

Data about employees are classified at section 13.43. Subdivision 2 lists most of the types of personnel data that are public and subdivision 4 classifies all other personnel data as private.

The images properly are classified pursuant to section 13.43: the Department maintains the images because X is an employee.

Pursuant to section 13.43, subdivision 2(5), 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. Ms. Bjornberg wrote, The investigation has now been completed and follow up action was taken. That action has reached a final disposition pursuant to Minnesota Statute 13.43, Subd.2(5). Because, according to the Department, a final disposition has occurred, any data documenting the basis for the disciplinary action are public. Ms. Bjornberg stated, The fact that the images were stored and/or maintained on [X's] hard drives, does constitute, in part, the basis for the disciplinary action taken against [X].

In Advisory Opinion 93-003, the Commissioner addressed an issue similar to the one the Department raised here. The University of Minnesota terminated two employees. The terminations resulted, in part, because one of the employees distributed a sexually explicit video tape to students. In the opinion, the Commissioner concluded that the videotapes were classified pursuant to section 13.43:

Although the University makes a strong case that certain decision makers involved in the disciplinary action taken against X and Y never saw the contents of these tapes, it is clear from the record presented that even though some decision makers at the University may not have viewed the tapes, the contents were the primary reason for beginning the investigation of X and Y that ultimately lead to their dismissal...

...Taken that record as a whole, it would defy common sense for the Commissioner to conclude that these videotapes and their contents, based on a reading of Section 13.43 of the Act, were not among the reasons for or data documenting the basis for the disciplinary actions taken against X and Y.

However, the Commissioner went on to conclude that the tapes were private because treating them as public would create an absurd result. Shortly thereafter, the Minnesota Daily sued the University in Hennepin County District Court for a copy of the tapes. In June of 1994, Judge Lucy Wieland found that the videotapes constituted public data within the meaning of Chapter 13 and directed the University to furnish copies of the videotapes to the Daily. Minnesota Daily v. University of Minnesota, File No. MC 94-2324 (Fourth Judicial District Hennepin County State of Minnesota, June 14, 1994). Judge Wieland wrote:

Although some of the decision makers...did not actually view the contents of the videotapes, it is clear from the record as a whole that the sexual nature of the videotapes was the primary reason for the institution of the investigation which led to the Delis' termination...

This Court finds that the Commissioner erred...The clear and unambiguous language of Section 13.43 of the Act provides that any data which forms a basis of a decision to discipline an employee is public data.

In the current case, Ms. Bjornberg stated that the fact that the images were stored and/or maintained on X's hard drives constitutes, in part, the basis for the disciplinary action taken against X. However, it seems clear that both the fact that the images exist as well as the images, themselves, are data that document the basis of the disciplinary action. Thus, based on the finding in 93-003 and in the Daily case, they are public.

X's attorney did raise an additional issue in his comments to the Commissioner. He wrote:

Assuming these images are government data, and assuming further that there is a pending civil legal action relating to the data pursuant to section 13.39, the data should be classified as confidential.

It is my understanding that [X] who is accused of accessing the data has filed an appeal with the Office of Administrative Hearings, which is his/her right under Minn. Stat. section 43A.33. A 'pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. ...Clearly, the employee's administrative appeal constitutes a pending civil legal action.

Section 13.43, subdivision 2(b), describes the situations when a final disposition occurs:

For purposes of this subdivision, a final disposition occurs when the [government entity] makes its final decision about a 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....

Here, the Commissioner is aware that X was a senior official at the Department, presumably without collective bargaining rights. In addition, Ms. Bjornberg stated that the Department has reached a final disposition. Therefore, data documenting the basis of the disciplinary action are public regardless of the possibility of any later proceedings or court proceedings.

The Commissioner addressed a similar issue in Advisory Opinion 96-050:

The Minnesota Supreme Court case...referred to is Annandale Advocate v. City of Annandale, 435 N.W. 2d 24, (Minn. 1989). The Legislature amended Section 13.43 in 1990, following Annandale. That case, in relevant part, dealt with the meaning of the terms final decision and final disposition of disciplinary actions as these terms were used in Chapter 13.

In Annandale, the Court found that a final decision of the City was not the final disposition of the disciplinary action, because the employee had exercised his right under the Veterans Preference Act to have a further hearing on the matter. The Court acknowledged that its interpretation would result in delay of months and even years before disciplinary records could be released to the public. (See Annandale at 29.) Subsequently, in 1990, the Legislature amended Section 13.43, subdivision 2, by adding clause (b), which provides the definition of final disposition of disciplinary action, and includes the language regardless of the possibility of any later proceedings or court proceedings. (See Laws of Minnesota, 1990, Chapter 550, Section 1.)

Thus, according to the requirements of Section 13.43, subdivision 2, the specific reasons for and data documenting disciplinary action taken against a public employee become public when there has been a final disposition of the disciplinary action, regardless of the possibility of any later proceeding or court proceedings. The City has made its final decision; therefore there has been a final disposition of disciplinary action, and, regardless of any later proceeding, including a hearing under the Veterans Preference Act, the data sought by The Forum about J are public.

Thus, the data in question are public regardless of whether X has filed an administrative appeal.

Issue 3

Pursuant to Chapter 13, what is the classification of the descriptions of the images that are contained in the internal Mn/DOT investigative report?

Given that the images are data documenting the basis for the disciplinary action, the descriptions of those images also are data documenting the basis for the disciplinary action. Therefore, based on the analysis regarding Issue 2, the descriptions are public.

Opinion:

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

Signed:

Kirsten Cecil
Deputy Commissioner

Dated: December 17, 2002