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Advisory Opinion 95-008

February 15, 1995; City of Brooklyn Park

2/15/1995 10:15:43 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 government entity which requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.

On January 26, 1995, the Commissioner received a letter from Dave M. Johnson, Director of Services for the City of Brooklyn Park Police Department in which he requested an opinion on the following issue: when an employee or agent of an entity subject to Minnesota Statutes Chapter 13 possesses work-related data outside of the workplace, are those data government data as defined in Section 13.02, subdivision 7?

In his letter, Mr. Johnson made the distinction that any such data maintained by an employee or agent were not data that had been obtained by the employee or agent under Minnesota Statutes Section 13.03, Access to Government Data, or Section 13.04, Rights of Subjects of Data.

Mr. Johnson also noted that the Police Department recently instituted a policy that requires employees who leave employment of the Department to return all government data in their possession or control.

Issue:

In his request for an opinion, Mr. Johnson asked the Commissioner to address the following issue:

When an employee, or former employee, or an agent, or former agent, of an entity subject to Minnesota Statutes Chapter 13 possesses work-related data outside of the workplace, are those data government data as defined in Section 13.02, subdivision 7?

Discussion:

To answer Mr. Johnson's question, it is first necessary to examine the definition of the term government data in Chapter 13. Minnesota Statutes Section 13.02, subdivision 7, states that, ...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. Based on this definition, any data created by a current employee, or maintained or disseminated by a current or former employee of a government entity are considered government data.

The focus of Mr. Johnson's question is whether the location at which an employee creates, maintains, or disseminates data affects the definition of the term government data. For example, if a current or former employee maintains government data outside of the traditional workplace, are the data still government data? The answer to this question is yes. Government data are government data regardless of where the data reside. If an employee works at home, any work-related data s/he creates, maintains, or disseminates are still government data and therefore, are subject to the requirements and regulations of Chapter 13 and Minnesota Rules Chapter 1205.

Each government entity is responsible for assuring that data maintained away from the primary workplace are handled in compliance with Chapter 13. While neither Chapter 13 nor Rules Chapter 1205 provides any specific guidelines for this process, Section 13.05, subdivision 5, does address the issue in an indirect fashion. The language charges the government entity's responsible authority with establishing procedures to assure that all data on individuals are accurate, complete, and current for the purposes for which the data were collected and also with establishing appropriate safeguards for all records containing data on individuals.

It seems reasonable to conclude that if an entity has established and is implementing the aforementioned procedures and safeguards, the likelihood of a former employee engaging in an unauthorized possession of government data would be diminished. Furthermore, if an employee or former employee commits a violation of the entity's policy, the employer would then have some recourse.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Johnson is as follows:

Data maintained by a current or former employee of a government entity subject to Minnesota Statutes Chapter 13, that were created or collected by that person acting as an agent of the government entity, are government data pursuant to Chapter 13, regardless of where the data are maintained.

Signed:

Elaine s. Hansen
Commissioner

Dated: February 15, 1995

Data subjects

Complete and current 13.05

Location of data

Security safeguards (13.05, subd. 5)