November 18, 2002; Itasca County
11/18/2002 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:On September 30, 2002, IPAD received a letter from Joe Pershern, staff representative for the American Federation of State, County Municipal Employees (AFSCME) Minnesota Council Number 65, on behalf of his client, X. In this letter, Mr. Pershern asked the Commissioner to issue an advisory opinion regarding Itasca County's determination about a data practices issue. In response to Mr. Pershern's request, IPAD, on behalf of the Commissioner, wrote to Lester Kachinske, Director of Itasca County Health and Human Services. The purposes of this letter, dated October 2, 2002, were to inform him of Mr. Pershern's request and to ask him to provide information or support for the County's position. On November 4, 2002, IPAD received a response from Michael Haig, Assistant Itasca County Attorney. A summary of the facts of this matter follows. X, a County employee, applied for another position within the County. X was also involved in a discrimination lawsuit against the County. According to Mr. Pershern, Louise Koglin Fideldy, County Director of Administrative Services, informed Dyan Ebert, the attorney who represented the County in the lawsuit, that X had applied for the position before X was 'certified as an eligible finalist for the position. Mr. Pershern also stated that Ms. Fideldy also relayed that information to Peggy Clayton, a County employee whom Ms. Fideldy supervised, who in turn told Robert Bennett, X's supervisor. In an affidavit provided by Mr. Pershern, X stated: . . . on June 13, 2001, I was approached by my immediate supervisor, Robert Bennett, stating that he was disappointed in me for considering leaving [X's current position.] When I asked how he knew that I had applied for the position, he said he had been told by Peg Clayton that I was the lone applicant. In another affidavit provided by Mr. Pershern, Mitchell J. Brunfelt, the attorney who represented X in the lawsuit against the County, stated: [d]uring the discovery portion of the lawsuit, Dyan Ebert, during a phone conversation with me, stated that she had learned from Ms. Fideldy . . . that [X] had applied [for another County position.] At the time that this information was provided to me by Dyan Ebert (who had learned of it from Ms. Fideldy), it was my understanding that [X] was not a finalist for the . . .position. In his comments to the Commissioner, Mr. Haig stated that Ms. Clayton did not tell Mr. Bennett that X had applied for another position, before X was a finalist for the position. Mr. Haig provided affidavits from both Ms. Clayton and Mr. Bennett, in which both of them disputed X's version of events. Mr. Bennett stated that Ms. Clayton did not tell him that X had applied for the position, and that when he tried to confirm that information with Ms. Clayton, she informed me that she could not tell since she did not have a certified list of finalists completed at that time. Ms. Clayton stated the same version of events. Regarding Mr. Pershern's allegation that Ms. Fideldy improperly disclosed private data about X to attorney Ebert, Mr. Haig stated the disclosure was appropriate under Minnesota Rule 1205.0400, as well as statutes governing the attorney-client relationship (Mr. Haig cited Minnesota Statutes, sections 595.02, subdivision 1 (b), and 481.06(5).) In her affidavit, Ms. Fideldy stated that at the time she disclosed to Ms. Ebert that X had applied for the position, the discrimination lawsuit referred to above was active, and [m]y decision to disclose this information to Ms. Ebert was made out of specific concerns relating to the litigation. . . . . Ms. Fideldy stated that she made this disclosure to Ms. Ebert in confidence pursuant to the attorney/client privilege provided by law. Issues:In his request for an opinion, Mr. Pershern asked the Commissioner to address the following issues:
Discussion:Issue 1Pursuant to Minnesota Statutes, Chapter 13, did Itasca County inappropriately release private data about employee X to a County attorney? Data about applicants for public employment are classified pursuant to Minnesota Statutes, section 13.43. Certain data on applicants are public throughout the process. However, under subdivision 3 of section 13.43, names of applicants are private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, 'finalist' means an individual who is selected to be interviewed by the appointing authority prior to selection. Further, pursuant to Minnesota Rules, part 1205.0400, subpart 2, private data are accessible only to individuals within the entity whose work assignments reasonably require access, and entities and agencies so authorized by statute or federal law. Subpart 3 requires that a government entity establish procedures to ensure that private data are accessible only to these parties. The Commissioner is of the opinion that it is appropriate for a government entity to disclose private data to its attorney as it deems necessary. In Advisory Opinion 99-019, he wrote: Therefore, if the responsible authority for the City has made the determination that Council members' work assignments reasonably require access to the data, the City Council members may gain access to private data about the reasons for the employee's leave, and details about the complaint or charge made against her/him. (See Minnesota Rules Part 1205.0400, subpart 2.) The City did not provide the Commissioner with a copy of the written procedures required by Rule, or details about the Council's relationship with the Commission. Thus, it is difficult for the Commissioner to make that determination. The Commissioner can envision circumstances under which the Council members' work assignments in providing direction to City operations would require them to have access to the kind of data described by Mr. Foy. However, that requires a specific determination by the responsible authority for the City. The Commissioner has not been provided any information that states that the responsible authority has made that determination. Accordingly, Ms. Ebert was entitled to gain access to the private data at issue here (i.e., that X had applied for the position before being certified as a finalist), only if the responsible authority for the County, following the procedures required under the Rule, determined that her work assignment reasonably required access. In her affidavit, Ms. Fideldy stated her reasons for making the disclosure to Ms. Ebert, but did not refer to the required procedures. The Commissioner analyzed the issue of dissemination of data to an attorney for a government entity as an issue of the attorney acting as an agent of the entity. Therefore, any issues of use and dissemination are governed by the work assignment requiring access rule, thereby obviating any need to analyze the issue by looking elsewhere for statutory authority to disseminate the data to the attorney. The County's argument that Chapters 595 and 481 provide authority to disseminate data is not correct. Neither of those statutes authorizes the dissemination of data. Issue 2Pursuant to Minnesota Statutes, Chapter 13, did Itasca County inappropriately release private data about employee X to X's immediate supervisor? X and the other County employees disagree about whether the County improperly disclosed the data as X alleges, a factual dispute which the Commissioner is unable to resolve. However, as discussed above, Mr. Bennett was entitled to gain access to the private data at issue here only if the responsible authority for the County, following the procedures required under the Rule, determined that his work assignment reasonably required access. The following note is in order. As mentioned above, Minnesota Rules, part 1205.0400, subpart 3, requires that government entities create written procedures that identify persons who may gain access to private data. The Commissioner does not know if the County has created any such procedures and Mr. Haig did not provide them as part of his comments. If the County has not created the procedures, the Commissioner urges it to do so promptly. Finally, as part of his analysis, the Commissioner considered whether the County should have provided X with a Tennessen warning notice. Government entities are required to give this notice when they ask an individual to provide private or confidential data about him/herself. Pursuant to section 13.04, subdivision 2, the notice must explain: (1) the purpose and intended use of the requested data within the collecting government entity; (2) whether the individual may refuse or is legally required to supply the requested data; (3) any known consequence arising from supplying or refusing to supply private or confidential data; and (4) the identity of other persons or entities authorized by state or federal law to receive the data. When an entity provides the notice, the data subject is made aware of how the entity will use and disseminate the data the subject has been asked to supply. The County did not comment on whether the County provided X with a Tennessen warning in connection to his/her application for the other position, or its content. A proper notice should have included that the possibility that the County would disseminate the data to its attorney. Pursuant to section 13.05, subdivision 4, private data shall not be collected, stored, used, or disseminated by a government entity for any purposes other than those stated to the individual at the time of collection in accordance with section 13.04, with certain exceptions that don't appear to apply here. When the provisions of sections 13.04 and 13.05 are read together, it is clear that a government entity may use and disseminate private data only as stated to an individual at the time of collection, unless one of the exceptions applies. If the entity fails to give a Tennessen warning, then the data may not be used for any purpose. Opinion:Based on the facts and information provided, my opinion on the issues raised by Mr. Pershern is as follows:
Signed: David F. Fisher
Dated: November 18, 2002 |
Data subjects
Data subjects
Educational data
Educational data
Personnel data
Tennessen warning
Tennessen warning
Attorney-client privilege (595.02)
Applicant data
Finalist for public employment (13.43, subd. 3)
Work assignment requires access
Employment setting
Limitation on collection/use of data (13.05, subd. 4)
Work assignment reasonably requires access (1205.0400, 1205.0600)
