April 2, 1999; Douglas County
4/2/1999 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 February 16, 1999, IPA received a letter from Mark Anfinson, an attorney representing the Echo Press, a newspaper published at Alexandria, Minnesota. In his letter, Mr. Anfinson asked the Commissioner to issue an opinion regarding his client's right to gain access to the reasons for the termination of a Douglas County employee. Mr. Anfinson enclosed copies of related correspondence. In response to Mr. Anfinson's request, IPA, on behalf of the Commissioner, wrote to Christopher D. Karpan, Douglas County Attorney. The purposes of this letter, dated February 19, 1999, were to inform him of Mr. Anfinson's request, and to ask him to provide information or support for the County's position. In that letter, IPA asked Mr. Karpan to forward a copy of Mr. Anfinson's request to M, the terminated employee, asking M to submit any comments s/he might wish. On March 1, 1999, IPA received a response from Mr. Karpan. M did not respond. A summary of the detailed facts of this matter follows. According to Mr. Anfinson, the County Board held a closed meeting on January 20, 1999. At its conclusion, the Board voted in a public session to terminate M's employment, effective immediately. The Board did not provide reasons for its action. Later that same day, the County Attorney issued a news release announcing the termination; the only explanation provided for M's termination was that it was due to continuing unacceptable behavior over an extended period of time. Subsequently, Al Edenloff, editor of the Echo Press, wrote to Mr. Karpan, and asked a series of questions about the reasons for M's termination. Mr. Edenloff specifically asked for copies of any complaints or documents reviewed by the board prior to its decision. The questions Mr. Edenloff posed do not amount to a request for access to data under Minnesota Statutes, Chapter 13. However, subsequent correspondence makes clear that the County viewed Mr. Edenloff's request as a request for access to public data under Section 13.43. Because technically Mr. Edenloff's initial requests were not within the purview of Chapter 13, the Commissioner asked Mr. Karpan if he disagreed with the Commissioner's decision to issue an opinion to Mr. Anfinson. Mr. Karpan stated that he has no objection. In his response to Mr. Edenloff, dated January 27, 1999, Mr. Karpan stated that because M was an at-will employee, the County could terminate M's employment for any reason or for no reason at all, with certain exceptions that do not apply here. Mr. Karpan stated . . . from a liability standpoint, the less said the better. That is why the Board is not commenting on their decision. They are trying to protect the County from having to battle through otherwise avoidable legal proceedings. Mr. Karpan sent Mr. Edenloff copies of two written complaints made against M, which he said were public data under Chapter 13. According to Mr. Karpan, [t]hese documents are the only written documents that we have and the only written documents that Chapter 13 demands that I release. Mr. Karpan continued: [i]t concerns me that, in releasing these, people reviewing them will come to the conclusion that this incident or series of incidents were the sole reason [M] was terminated. I think such speculation would be unwise and probably false. A lot of things may have gone on over the last few years. You're just not going to hear about them from us. In a letter to Mr. Edenloff dated February 10, 1999, Mr. Karpan stated: [f]urthermore, [Minnesota] case law makes it clear that information contained only in the minds of the commissioners is not data' under Chapter 13 and need not be disclosed. In his opinion request, Mr. Anfinson stated: In our view, the only reasonable interpretation [of Mr. Karpan's comments quoted two paragraphs above] is that there almost certainly were other, more significant reasons for the termination. . . . . We believe that the requirements of 13.43, subd. 2(a)(5) regarding specific reasons for discipline are unambiguous, and that regardless of whether the county board actually wrote down or otherwise recorded the reasons for its decision when it was made, in some fashion the board must - presumably with the help of the county attorney - provide particulars. Where the statute so clearly mandates that specific information be provided - as opposed to simply being disclosed or protected - the so-called Keezer rule does not even arise, contrary to Mr. Karpan's suggestion in his February 10 letter. In our view, the requirement in 13.43, subd. 2(a)(5) for disclosure of specific reasons for discipline operates in a fashion similar to the requirements, for example, of 13.43, subd. 2(a)(4) ( the existence and status of any complaints or charges' against an employee are public), and of 13.82, subd. 2-4 (relating to certain types of law enforcement data). It does not matter whether the specific reasons for discipline, the receipt or the status of a complaint, or the law enforcement data have been documented in writing. These and similar portions of the Data Practices Act would seem to mandate that government data be created (within the meaning of Keezer), and that the data are public. To conclude otherwise would create a very large loophole allowing the important public accountability function of these sections to be frustrated by the simple device of failing to record the data referred to. In his response to the Commissioner, Mr. Karpan wrote: The main concern I have with the paper's demand for further information is that, if this were required by Chapter 13, that law would no longer be a series of statutes classifying existing government data, but rather a series of statutes now used to force governmental entities to generate data that they would not otherwise have to generate. . . . . [Emphasis his.] The County is not alleging that it can withhold data' already in its possession regarding complaints or allegations against [M] simply because it may expose the County to additional liability. Only that the County should not be forced to generate further data where none now exists. . . . . The paper insists that the Keezer rule would not apply in this situation nor [sic] those when information is demanded regarding the existence of complaints under Section 13.82 Subd. 2 (a)(4). There is no authority for this assertion. . . . . Issue:In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.02, subdivision 7, government data means all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. The Minnesota Court of Appeals held in 1993 that data must be recorded in physical form in order to be considered government data for purposes of Chapter 13. (See Keezer v. Spickard, 493 N.W. 2d 614 (Minn. Ct. App. 1992), review denied February 12, 1993.) In Keezer, the Court wrote: The [Minnesota Government Data Practices Act] is intended to regulate every aspect of how the government manages the information it collects and records. It is nearly impossible to regulate any function related to data until a record is created somewhere outside the human brain. To give effect to the Act, we conclude that information is not government data' until the information is recorded somewhere other than the human brain. The Commissioner accepts the County's assertion that it has provided the newspaper with all of the public data it maintains regarding M's termination. The question then, is whether the County must create data in response to the newspaper's request. Mr. Anfinson asserts that a provision of section 13.43, which governs data about public employees, requires the County to provide the reasons for M's termination, even if those reasons are not recorded in physical form. Otherwise, Mr. Anfinson asserts, a government entity could evade public accountability simply by failing to create a physical record of its actions. Pursuant to section 13.43, subdivision 2 (a) (5), the following data are public: the final disposition of any disciplinary action together with 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. The Commissioner respectfully disagrees with Mr. Anfinson that this provision requires the County, in response to the newspaper's request, to create data where none now exist. No provision of Chapter 13 imposes an obligation on government entities to create data in response to a request from the public. Mr. Karpan asserts that because M was an at-will employee, the County is not obligated to provide any reasons for M's termination. However, according to the Official Records Act, Minnesota Statutes, section 15.17, subdivision 1, [a]ll officers and agencies of . . . counties . . . shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, read in concert with section 13.03 (access to public data), imposes an obligation on the County to make and preserve a record of its actions, so that those records will be available for public inspection. In this instance, section 13.43, subdivision 2(a)(5), provides some guidance as to what specific data would satisfy the requirements of section 15.17. Mr. Karpan stated that he was concerned that if one were to rely solely upon the data the County has made available to the public, one could come to the conclusion that this incident or series of incidents were the sole reason [M] was terminated. I think such speculation would be unwise and probably false. That is one of the situations the County could avoid by providing the public with access to the specific reason for M's termination. Accordingly, the Commissioner cannot reasonably conclude that the County has met its obligation under section 15.17, that is, to create a full record of its decision to terminate M. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Anfinson is as follows:
Signed:
David F. Fisher
Dated: April 2, 1999 |
Copy costs
Existence of data
Response to data requests
New data or different format not required
Mental impressions (See: Keezer v. Spickard, 493 N.W.2d 614)
