November 1, 1996; University of Minnesota
11/1/1996 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 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, with the exception of any data classified as not public, are available for public access.On September 12, 1996, PIPA received a letter requesting this opinion from Robert M. Shaw. In that letter, Mr. Shaw described his attempts to gain access to certain data maintained by the University of Minnesota. Mr. Shaw enclosed copies of related correspondence. In response to Mr. Shaw's request, PIPA, on behalf of the Commissioner, wrote to Tracy M. Smith, Associate General Counsel, University of Minnesota. The purposes of this letter, dated September 13, 1996, were to inform Ms. Smith of Mr. Shaw's request, to ask her to provide information or support for the University's position, and to inform her of the date by which the Commissioner was required to issue this opinion. On September 20, 1996, PIPA received a response from Ms. Smith. A summary of the detailed facts of this matter follows. Throughout 1996, Mr. Shaw made several requests for access to data maintained by the University concerning settlements of discrimination claims. Mr. Shaw communicated his requests to Mark Rotenberg, University General Counsel; Ms. Smith; and Susan McKinney, Records and Information Manager and Responsible Authority at the University. Initially, Mr. Shaw asked for the total dollar amount paid by the University over the past ten years to settle discrimination claims, regardless whether the claim was litigated. Mr. Shaw's subsequent requests were expressed in various ways, but all relate to how the University has settled discrimination claims. According to Mr. Shaw, he originally thought that the University prepared a settlement of claims document for every discrimination case, and that the data were maintained in such a way that they would be easily accessible to members of the public. At a meeting on March 20, 1996, Ms. Smith showed him many shelves of file folders - some of them three, four inches thick, each of which represented a claim against the University. Ms. Smith told him that the data he wanted were contained in those file folders, of which there were thousands. She told Mr. Shaw that no member of the public would be permitted to inspect the files because they contained both public and not public data. Mr. Shaw understood that the fee the University would charge him for copies of the public data in the files would be higher than he was prepared to pay. (Letter from Mr. Shaw to Mark Rotenberg, March 26, 1996.) Mr. Shaw acknowledged that the University provided some, but not all, of the information he requested. After several more attempts to gain access to the remaining data, Mr. Shaw wrote again to Mr. Rotenberg in July 1996. In that letter, Mr. Shaw wrote: . . . I would like to make another run at things with a brand new request. Pursuant to [Minnesota Statutes Section 13.03] I would like to inspect public data maintained by your office which documents the dollar amounts, including damages awards, paid by the [University] to settle discrimination suits for the past ten years. In response, Ms. Smith wrote to Mr. Shaw. In that letter, dated July 24, 1996, Ms. Smith wrote: I made available for your review the University's settlement agreements, but you chose not to review them. Mr. Shaw responded to Ms. Smith: I do not believe, Ms. Smith, that you 'made available ... settlement agreements' which I 'chose not to review.' On the contrary, you said it would not be possible for me to inspect the files because of the 'mixture' (my quotes) of public and non-public documents in the files. (Emphasis his.) According to Mr. Shaw, the University has not provided him with access to the data he requested in his July 1996, letter to Mr. Rotenberg. The University disagrees with Mr. Shaw. In her response to the Commissioner Ms. Smith wrote: [a]s the University explained to Mr. Shaw, the General Counsel's Office does not have data for settlements prior to [July 1, 1994], because the tracking system was instituted 1994. Ms. Smith said that the University has provided a wealth of information to Mr. Shaw in response to his requests, including lists of settlements of litigated matters involving discrimination, the total amount of money spent settling discrimination claims, the number of court claims, administrative claims, and internal grievances involving discrimination, and information about the University's insurance coverage for discrimination claims.
Ms. Smith stated that until July 1993, the University . . . had no administrative need to distinguish discrimination from all other types of claims, since discrimination claims were not separately insured. Mr. Shaw assumes that because he has an interest in discrimination, the University must search and organize its data according to his interest. The Data Practices Act does not impose such a [sic] obligation.
Ms. Smith also stated:
Ms. Smith further stated: [i]n addition, the University provided Mr. Shaw access to the General Counsel's folders of settlement agreements, which contain settlements of litigated matters, including discrimination claims. Mr. Shaw chose not to review those settlements. Finally, Ms. Smith stated: [t]he University has provided Mr. Shaw all the data at the University's disposal concerning his request.
Issue:
In his request for an opinion, Mr. Shaw asked the Commissioner to address the following issue:
Discussion:
The classification of the data in question is not in dispute. Pursuant to Minnesota Statutes Section 13.43, subdivision 2 (a) (6), the terms of any agreement settling any dispute arising out of an employment relationship are public data. Therefore, Mr. Shaw is entitled to inspect those data at no charge, pursuant to Section 13.03, subdivision 3.
However, Ms. Smith maintains that [t]he University has provided Mr. Shaw all the data at the University's disposal concerning his request, including an opportunity to inspect the settlement data in its files. Mr. Shaw does not agree that he was afforded that opportunity. This matter is complicated by a number of things. First, Mr. Shaw made numerous requests of the University, and the specific content of those requests, all of which related to discrimination claim settlements, was modified by Mr. Shaw during the months he was trying to get the data. It is therefore understandable that there may be some confusion on the part of Ms. Smith and Mr. Rotenberg as to exactly what data Mr. Shaw is still seeking. However, Mr. Shaw was clear in his last request, that he intended it as a new request, distinct from his previous requests. A second complicating factor is that Mr. Shaw, in his requests for data, generally directed those requests to Mr. Rotenberg or Ms. Smith, and referred to University data maintained by Office of General Counsel. In his requests for access directed to Ms. McKinney, he referred both to information relating to discrimination settlements by the University and to information contained in records in the hands of the University's General Counsel office. In the request at issue here, Mr. Shaw's July 1996 request directed to Mr. Rotenberg, he requested access to data maintained by your office. However, in her response, Ms. Smith stated that she had made the University'ssettlement agreements available to Mr. Shaw. In Ms. Smith's and Mr. Rotenberg's other responses to Mr. Shaw, they referred both to data maintained by the Office of General Counsel, and to data maintained by the University. They stated that the information they had provided Mr. Shaw may not include every settlement involving discrimination claims, because individual University departments may resolve some grievances informally. According to them, such resolutions are not normally tracked or handled by the General Counsel's Office or the University's central administrators. A third complicating factor is that it is not clear whether Mr. Rotenberg and/or Ms. Smith are acting as the University's responsible authority and/or designee, or as representatives solely of the University's Office of General Counsel. When Mr. Shaw wrote to Ms. McKinney, who he understood to be the University's Responsible Authority, she referred him to Mr. Rotenberg. If Mr. Rotenberg and/or Ms. Smith were responding to Mr. Shaw as the University's Responsible Authority and/or Designee, then they needed to provide him with access to the data relevant to his request, regardless whether those data are maintained by the Office of General Counsel. If they were not acting in that capacity, then Ms. McKinney should have responded directly to Mr. Shaw, and made all of the data available for his inspection, regardless where those data are physically stored by the University. Had the University provided Mr. Shaw with a copy of its data practices policies and procedures regarding how a member of the public may gain access to public data maintained by the University, and asked Mr. Shaw to follow those procedures, complicating factors could have been avoided. It is appropriate for a government entity to require an individual to identify clearly, with a level of specificity, appropriate to the circumstance, what government data the individual is seeking. According to the information provided to the Commissioner, even considering the complications noted above, it does not appear that the University has properly responded to Mr. Shaw's July 1996 request for access to public data. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Shaw is as follows:
Signed:
Elaine S. Hansen
Dated: November 1, 1996
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Personnel data
Responsible authority
Resignation
Responsible authority (RA)
