June 16, 1998; Minnesota Department of Corrections
6/16/1998 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, except for any data classified as not public, are available for public access. On April 17, 1998, PIPA received a letter from Jordan Kushner, an attorney, on behalf of his client, C. In his letter, Mr. Kushner asked the Commissioner to issue an opinion regarding C's rights to gain access to certain data maintained by the Minnesota Department of Corrections (DOC). Mr. Kushner enclosed copies of related correspondence. In response to Mr. Kushner's request, PIPA, on behalf of the Commissioner, wrote to DOC Commissioner Lafleur. The purposes of this letter, dated April 24, 1998, were to inform Commissioner Lafleur of Mr. Kushner's request, and to ask him to provide information or support for DOC's position. On May 8, 1998, PIPA received a response from Jean M. Whitney, Assistant Commissioner and attorney for DOC. A summary of the detailed facts of this matter follows. C is an inmate at Minnesota Correctional Facility - Oak Park Heights. On August 26, 1997, C was involved in an incident with prison guards, during which C's nose was broken. On February 17, 1998, Mr. Kushner faxed a request to a prison official for copies of all incident reports, investigatory reports, and other documents related to the incident. A proper release of information was on file at the prison. According to Mr. Kushner, he was referred to Steve Ayers, assistant to the Warden, with whom he had a telephone conversation. Mr. Ayers told Mr. Kushner that he (Ayers) needed to speak with Ms. Whitney before responding. Mr. Kushner did not receive any further response to his request, and so wrote again requesting the data, in a letter to Mr. Ayers dated March 21, 1998. Mr. Ayers responded in a letter dated March 30, 1998, in which he enclosed a document Mr. Kushner already possessed. Mr. Ayers stated that all other data requested by Mr. Kushner will not be released pursuant to [Minnesota Statutes Sections] 13.37 and 13.39. In her response to the Commissioner, Ms. Whitney wrote that Mr. Kushner had requested several types of data related to the incident. The document provided to Mr. Kushner was determined to be private data about C. According to Ms. Whitney, the rest of the data that the facility generated about the incident were determined to be either data on employees or not data on individuals.' . . . . In this case, the data on employees was gathered as part of an investigation that did not result in discipline. Accordingly, the only data that is public is the fact that there was an investigation and the final disposition of the investigation. Ms. Whitney stated that the other reports contain either nonpublic security data pursuant to Section 13.37, or confidential or protected nonpublic data pursuant to Section 13.39. Issue:In his request for an opinion, Mr. Kushner asked the Commissioner to address the following issue:
Discussion:Mr. Kushner requested copies of all incident reports, investigatory reports, and other documents related to the incident during which C's nose was broken. Given the nature of the situation, Mr. Kushner, in effect, asked for data about C, and any other public data about the incident, including any public data about the prison employees who were involved. Pursuant to Minnesota Statutes Section 13.04, subdivision 3, upon request from a data subject to inspect and/or obtain copies of data about him/her, the responsible authority shall comply immediately, if possible, or within five working days of the date of the request. If the responsible authority is unable to comply within that time, s/he may have an additional five working days within which to comply with the request, if the individual is so informed. Mr. Kushner was told by Mr. Ayers in a telephone conversation that he would need to consult with Ms. Whitney before responding to Mr. Kushner's February 17, 1998 request for copies of data about the incident involving C. Mr. Kushner, after repeating his request, received a response from DOC, including a document containing data about C, in a letter dated March 30, 1998, 29 working days after the date of his first faxed request. At most, with notice, DOC was required to respond to Mr. Kushner within ten working days, with respect to the data that are about C. As to the data related to the incident that are not about C, a different standard with respect to the time frame applies. Pursuant to Section 13.03, subdivision 2, a government entity must respond to a request for access to public data appropriately and promptly. Section 13.03, subdivision 3, provides: If the responsible authority or designee determines that the requested data is classified so as to deny the requesting person access, the responsible authority or designee shall inform the requesting person of the determination either orally at the time of the request, or in writing as soon after that time as possible, and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based. Upon the request of any person denied access to data, the responsible authority or designee shall certify in writing that the request has been denied and cite the specific statutory section, temporary classification, or specific provision of federal law upon which the denial was based. [Emphasis added.] In her response to the Commissioner, Ms. Whitney stated that most of the data sought by Mr. Kushner were data about prison employees or data not on individuals, and were not accessible to C because the data were classified pursuant to Sections 13.43, 13.37 and 13.39. Pursuant to Section 13.43, personnel data are data on current and former employees. Pursuant to Section 13.43, subdivisions 2 and 4, certain personnel data are public, and all other personnel data are private. Of relevance here, the following personnel data are classified as public: the existence and status of any complaints or charges against an employee, and the final disposition of any disciplinary action, including 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. According to Ms. Whitney, DOC investigated the incident involving C, and did not take disciplinary action against any employee. Therefore, the only related personnel data that would be available to C are the status of any complaint or charge made against a prison employee. Pursuant to Section 13.37, subdivision 1 (a), [s]ecurity information' means government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. To the extent that the data about the incident involving C meet this definition, then the data are not accessible to C. Additionally, Section 13.85, subdivision 1, provides: corrections and detention data' means data on individuals created, collected, used or maintained because of their lawful confinement or detainment in state reformatories, prisons and correctional facilities, municipal or county jails, lockups, work houses, work farms and all other correctional and detention facilities. Pursuant to subdivision 3 of that Section, corrections and detention data are confidential to the extent that release of the data would: (a) endanger an individual's life, (b) endanger the effectiveness of an investigation authorized by statute and relating to the enforcement of rules or law, identify a confidential informant, or (d) clearly endanger the security of any institution or its population. Although Ms. Whitney did not refer to this Section, if Section 13.37 applies to the data, presumably so would Section 13.85. Pursuant to Section 13.39, subdivision 2, data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic or confidential data. Pursuant to subdivision 1, whether a civil legal action is pending shall be determined by the chief attorney acting for the government entity. It is not clear how Section 13.39 applies to this case. According to Mr. Kushner, the administrative prison disciplinary proceeding against C, including the disciplinary hearing and administrative appeal, are completed. Furthermore, the Commissioner was not provided with information that Ms. Whitney is the chief attorney acting for DOC in this matter. However, if Ms. Whitney, as the chief attorney acting for DOC, has made the determination that there is a pending civil legal action, then, pursuant to Section 13.39, the associated data are not accessible to C. However, it is reasonable to assume that some of the data protected under Section 13.39 are data about C. If that is the case, DOC should have responded to Mr. Kushner regarding those data in five days. In summary, according to Ms. Whitney, the remaining data Mr. Kushner requested were not public data, either about prison employees or prison policies and procedures. DOC was required to notify Mr. Kushner that the data were not accessible as soon as possible. Given the nature of the data requested, a response 29 working days later does not meet the statutory standard. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Kusnher is as follows:
Signed:
Elaine S. Hansen
Dated: June 16, 1998 |
Security information
Corrections and detention data (13.85)
Security information (13.37, subds. 1(a), 2)
