July 27, 1995; City of Brooklyn Park
7/27/1995 10:16:43 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation Facts and Procedural History:For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On July 13, 1995, PIPA received a letter from X requesting this opinion. In his letter, X described a dissemination of certain data maintained about him by the Brooklyn Park Police Civil Service Commission. X enclosed copies of relevant correspondence with the Commission. In response to X's request, PIPA, on behalf of the Commissioner, wrote to Craig Rupp, Manager of the City of Brooklyn Park. The purposes of that letter, dated July 17, 1995, were to inform Mr. Rupp of X's request, to ask him or the City's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. On July 21, 1995, PIPA received a letter in response from Gregory J. Hellings, an attorney, on behalf of his client, the Commission. A summary of the detailed facts of the matter is as follows. X is employed by the City of Brooklyn Park, as director of services for the police department. On June 19, 1995, he received written notification from Chief of Police Donald E. Davis, that a complaint had been filed against him by the Commission. Chief Davis notified X that an administrative investigation into the complaint would be conducted. According to X, while the complaint was under investigation, a member of the Commission communicated the details of that complaint to an employee of the police department who has no responsibility in the matter. In response, Mr. Hellings stated that the Commission denies the facts as presented by X.
Issues:
In his request for an opinion, X asked the Commissioner to address the following issues:
Discussion:
Issue 1. Within the meaning of Minnesota Statutes Section 13.02, subdivision 11, the Commission is not, per se, a political subdivision. However, pursuant to Minnesota Statutes Section 419.01, the Commission was established by City ordinance, and is a function of the City of Brooklyn Park.
Issue 2. Given that the Commission is a function of City government, then pursuant to Section 13.02, subdivision 11, it is subject to the provisions of Chapter 13. Issue 3. Pursuant to Section 13.02, subdivision 7, data contained in the letter of complaint are data which were collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system and are, therefore, government data. Issue 4. As the Commissioner discussed in Advisory Opinion 93-011, the answer to whether verbal communications constitute dissemination of government data rests upon whether the data are recorded in physical form, or exist only as mental impressions, as decided by the Minnesota Court of Appeals in 1993. (See Keezer v. Spickard, 493 N.W. 2d 614 (Minn. Ct. App. 1992), review denied February 12, 1993.) X referred to a verbal dissemination of data which were detailed in the Commission's letter of complaint about him. A verbal dissemination of data which are recorded elsewhere in physical formis a dissemination of government data, per Keezer. If the dissemination of data occurred as X described, it was a dissemination of government data. However, the attorney for the Commission explicitly denied that the complaint data were verbally disseminated by one of its members in the manner described by X. Issue 5. Pursuant to Section 13.43, a complaint of misconduct and request for disciplinary action made against a City employee are data which were collected because the individual is or was an employee of . . . a state agency, statewide system or political subdivision . . .. Therefore, those data are personnel data. Issue 6. Section 13.43, subdivision 2, provides that during the processing of a complaint or charge against an employee, the data that are public are the employee's name, and the existence and status of the complaint or charge. If the employee is disciplined, and the disciplinary action is a final disposition, then the final disposition, the specific reasons for the action, and data documenting the basis of the action are public data. Therefore, in this case, setting aside the factual dispute, absent a final disposition, data about the complaint or charge, other than the fact of the existence of the complaint, and its status, are private data. (See Section 13.43, subdivision 4.) Issue 7. The informed consent of an employee is not always necessary to release private data about that employee. Pursuant to Section 13.05, subdivision 3, the use and dissemination of private or confidential data outside the government entity which maintains the data is limited to that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government. Therefore, in some instances, a dissemination of private data may be made without the data subject's consent, if the disclosure is necessary for the administration and management of authorized programs. In addition to the general standard established by Section 13.05, subdivision 3, Minnesota Rules Part 1205.0400, subpart 2, provides guidance on issues of access to private data within a government entity. Pursuant to the rule, access to private or confidential data by public employees within a government entity is limited to those individuals within the entity whose work assignments reasonably require access . . .. Therefore, an employee may gain access to private data about a fellow employee, without that employee's informed consent, if his or her work assignment reasonably requires access to the data. However, the general standards of use and dissemination of private data provided in Minnesota Statutes Section 13.05, subdivision 3, and Minnesota Rules, Part 1205.0400, subpart 2, are subject to further limitations, in the circumstance in which the private or confidential data in question were collected from the data subject, and the individual was given the proper notice ( Tennessen Warning ) required under Section 13.04, subdivision 2. The collection, storage, use and dissemination of such data for any purposes other than those stated to the individual, in the Tennessen Warning, at the time of collection, are regulated by Section 13.05, subdivision 4. The exceptions provided in that subdivision are very limited. (For further discussion of this issue, see Commissioner's Advisory Opinion 95-028.) However, one of the exceptions is that data may be used and disseminated in a manner different from that stated in the Tennessen Warning, if the individual gives informed consent. (See Section 13.05 (4)(d).) In summary, the details and specifics contained in the personnel complaint may be disseminated without the data subject's informed consent if, subject to the limitations stated in the Tennessen Warning if applicable, the data are disseminated pursuant to Section 13.05, subdivision 3, and if the dissemination meets the standard set forth in Minnesota Rules Part 1205.0400, subpart 2.
Issue 8. Pursuant to Section 13.39, subdivision 2, data collected 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 [confidential]. Pursuant to subdivision 1 of that Section, [a] 'pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. Clearly, the definition of legal action provided in Section 13.39 includes administrative and arbitration proceedings.
NOTE: The following statements of opinion are the Commissioner's reading of the issues raised by X, pursuant to the provisions of Chapter 13. The statements do not contain any determination as to whether the City did or did not do what X asserts that it did. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by X is as follows:
Signed:
Elaine S. Hansen
Dated: July 27, 1995
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Data subjects
Educational data
Informed consent
Personnel data
Tennessen warning
Data necessary for administration and management of programs (13.05, subd. 3)
Mental impressions (See: Keezer v. Spickard, 493 N.W.2d 614)
Informed consent
Civil investigative data (13.39)
Consent needed for new use of data if notice was not given
