December 13, 2000; Minnesota Department of Labor and Industry
12/13/2000 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 IPA and, except for any data classified as not public, are available for public access. On August 25, 2000, IPA received a letter dated August 24, 2000, from X. In his/her letter, X requested that the Commissioner issue an opinion regarding X's access to certain data that the Minnesota Department of Labor and Industry (DLI) maintains. IPA staff began discussions with X about the requested advisory opinion. Included in these discussions was the need for a delay in accepting the request due to a marked increase in the number of advisory opinions being requested by several individuals and entities. It was agreed that the Commissioner would issue an opinion on the matter listed below. X submitted a letter to that effect dated September 19, 2000. IPA, on behalf of the Commissioner, wrote to Gretchen Maglich, Commissioner of DLI, in response to X's request. The purposes of this letter, dated October 2, 2000, were to inform her of X's request and to ask her to provide information or support for the Department's position. On October 31, 2000, IPA received a response, dated October 27, 2000, from Nancy Leppink, Director of Legal Services of the Department. A summary of the facts is as follows. In a letter dated August 3, 2000, X asked to visually inspect all public and private data relating to me, [X], which have been collected, created, stored, maintained, or disseminated by [DLI] during calendar year 2000 to the present day. This request includes data collected, created, stored, maintained, or disseminated by any past or present employees of [DLI]. Commissioner Maglich wrote to X in a letter dated August 16, 2000. Of relevance to this opinion, she wrote: Also enclosed are copies of correspondence between you and the department and, in response to your request for electronic data in which your name appears, copies of e-mails generated in response to your phone calls to the department. Some data have been redacted pursuant to Minnesota Statutes, sections 13.43, subd. 8, 13.37, subds. 1 (a) and 2, and 13.30. X disagreed with the Department's redactions and requested an opinion. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Data about employees are classified at Minnesota Statutes, section 13.43, personnel data. Personnel data means data on individuals collected because the individual is or was an employee of...a state agency... Pursuant to subdivision 2 of section 13.43, names of employees are public. In her comments to the Commissioner, Ms. Leppink wrote, It is the position of DLI, that the names of DLI employees who sent or received the e-mail messages that were provided to X in response to his/her government data request are private data pursuant to Minn. Stat. section 13.37, subd. 1(a) and 2, Minn. Stat. section 13.03, subd. 4, Minn. Stat. section 1.5 and Minn. Stat. section 15.86. Minnesota Statutes, section 15.86, requires that each state agency adopt a goal of zero tolerance of violence. Subdivision 1 states: ...Each agency is encouraged to develop a plan that describes how each agency will: (1) seek to eliminate any potential for violence in and around the agency workplace; and (2) seek to eliminate any potential for violence by affecting the attitudes and behavior of people that the agency serves or regulates. Minnesota Statutes, section 1.50, states, The state of Minnesota hereby adopts a policy of zero tolerance of violence. It is state policy that every person in the state has a right to live free from violence. Ms. Leppink wrote, In accordance with [section 15.86], DLI adopted a Zero Tolerance for Workplace Violence Policy....X's harassing, abusive, threatening and aggressive behavior toward state employees, including DLI employees falls within the DLI policy's definition of violence. She added, Thus, DLI deleted the names of DLI employees from the e-mails they either sent or received... Section 15.86 requires state agencies to adopt a goal of zero tolerance of violence. It does not classify certain data as not public nor does it appear to give agencies discretionary authority to withhold certain data information when an agency deems it appropriate. For these reasons, the Commissioner is of the opinion that DLI cannot rely on section 15.86 to withhold the names of DLI employees from X. Ms. Leppink's other argument is that DLI can withhold from X the employee names pursuant to section 13.37, subdivision 1(a), security data: Security information means government data the disclosure of which would be likely to substantially jeopardize the security of...individuals...against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. Pursuant to subdivision 2 of section 13.37, security data are classified as private. In her comments to the Commissioner, Ms. Leppink wrote: X has a long history of engaging in harassing, abusive, threatening and aggressive behavior toward State of Minnesota employees. This harassing, abusive, threatening and aggressive behavior has been documented by several state agencies, the Minnesota Court of Appeals...and employees of DLI..... It is the position of DLI that the names of the employees who sent or received e-mails that were provided to X in response to his/her request for government data constitute security information. DLI determined...the release of the employees' names to X would substantially jeopardize the security of those employees against improper use and/or physical injury perpetrated by X. DLI's [sic] was particularly concerned about the security of its employees because the text of several of the e-mails conveyed information regarding the difficulty employees were having assisting X and about X's inappropriate behavior. While section 13.43 classifies names of employees as public, section 13.37 classifies security data as not public. In this case, it is the Commissioner's opinion that section 13.37 modifies section 13.43; employee names are public except when the release of those names would substantially jeopardize the security of...individuals... Because DLI has asserted it believes the release of the employee names would substantially jeopardize the security... of those employees, it is the Commissioner's opinion that DLI can withhold the data. That said, however, the Commissioner points out he is aware of the potential for entities to inappropriately withhold data pursuant to section 13.37. The problem is that the Legislature, by not defining substantially jeopardize, has provided government entities with a great deal of discretion in determining whether or not they can rightfully withhold data. Therefore, the Commissioner welcomes guidance from the Legislature in interpreting section 13.37 (1)(a) so that he can better assist entities in understanding their obligations under Chapter 13 and better assist individuals in realizing their rights under Chapter 13. Opinion:Based on the facts and information provided, my opinion on the issue that X raised is as follows:
Signed:
David F. Fisher
Dated: December 13, 2000 |
Security information
Labor and Industry Department
Security information (13.37, subds. 1(a), 2)
