Discussion:

In their communications to the Commissioner, both Mr. Corwin and Commissioner Larson stated that the MPCA conducted an investigation of Koch Refining Company for possible violations of state and federal law. Part of the investigation involved interviewing certain Koch employees. Although the Commissioner has not inspected the employees' statements, based on Mr. Corwin's and Commissioner Larson's comments, apparently only few of the collected data are about individuals. The bulk of the data are data not about individuals because they are about the Koch Company - a legal person, not an individual. Minnesota Statutes Section 13.02, subdivision 10, defines person as any individual, partnership, corporation, association, business trust, or a legal representative of an organization. Therefore, because the analysis in this opinion is related to data on individuals (see Section 13.02, subdivisions 4 and 5), the Commissioner urges careful application of this analysis. (For further discussion about the distinction between data on individuals and data not on individuals, see Advisory Opinions 96-025 and 97-028.)

In his comments, Commissioner Larson stated that the data in the Koch investigation files, including the employee interview transcripts, were not public under Section 13.39 until May of 1998. He wrote, Under Minn. Stat. 13.39, when an investigation becomes inactive, the data in the file generally become public, unless some other provision of [Chapter 13] or other law applies to keep the data protected. Commissioner Larson added:

Section 181.932, subdivision 2, states:

In relevant part, subdivision 1 of Section 181.932 states:

Section 181.931 defines employee as the following: [a] person who performs services for hire in Minnesota for an employer. Employee does not include an independent contractor.

The plain words of Section 181.932 state that when government entities deal with employees in any of the circumstances described in Section 181.932, subdivision 1, the entities must not disclose the employees' identities. The Commissioner acknowledges that this provision is far reaching; government entities cannot release data that typically would become public via the operation of Section 13.39 and it potentially complicates public access to closed investigative files.

In their comments, both Commissioner Larson and Mr. Anfinson suggested that to avoid these, and other problematic results, the Commissioner should look beyond the plain language of Section 181.932 and consider whether such an interpretation is absurd. (See Minnesota Statutes Sections 645.16 and 645.17, which are statutory sections that provide guidance on how to interpret statutes.) A determination that Section 181.932 does not protect identities would result in more data ultimately becoming public. As stated in Minnesota Statutes Section 645.16, When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

Section 181.932 establishes two situations where the identity of an employee must not be disclosed. These are: 1) the reporting of a violation and 2) participation in an investigation or hearing. Nowhere does the statute contemplate discretion in the application of this prohibition by the public official receiving the data. Although common sense would dictate that an employee disclosure in the presence of his/her employer does not fit with the traditional view of whistle blowing, there is no leeway in the statute for situational interpretation. Therefore, in this situation, the MPCA may not disclose the identity of an employee if 1) that employee reported a violation, or 2) the MPCA requested that the employee participate in the investigation.

Section 181.932 does not define identity. However, the Commissioner believes it is appropriate to look to the term data on individuals as it is defined in Section 13.02, subdivision 5: [a]ll government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

It is clear from the submissions of both Mr. Corwin and Commissioner Larson that the MPCA maintains identifying data on Koch employees who were approached by the MPCA to participate in an investigation. In this situation the MPCA appeared to comply with a traditional and common sense application of the whistle blower law; however, a straight-forward reading of the statute reaches a contrary conclusion - data that would identify these employees cannot be made public. Clearly, the Legislature needs to revisit the issue.

The result reached in this opinion also holds in other situations, i.e., reports or investigations, from which the MPCA has collected data which identify employees covered by Section 181.932, subdivisions 1 and 2.

As stated above, another facet of Mr. Corwin's question concerns the notice requirement set forth in Section 13.04, subdivision 2. When an individual is asked by a government entity to provide private or confidential data about him/herself, the entity must inform the individual of the following: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. This notice requirement is often referred to as a Tennessen Warning.

In his response to the Commissioner of Administration, Commissioner Larson wrote that in April of 1997, the MPCA received complaints regarding possible violations of state and federal law at Koch. As part of MPCA's investigation, it interviewed Koch employees in the presence of Koch legal counsel and (in the case of union employees) union representatives. Commissioner Larson also stated that the investigation files, including the employee interview transcripts, were not public until May of 1998, when the MPCA settled with Koch and the investigation was inactive (see Section 13.39).

Section 13.39, civil investigative data, classifies as confidential or protected nonpublic those data government entities collect as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action or retain in anticipation of a pending civil legal action. Once the investigation becomes inactive, the data become public, unless release would jeopardize another pending legal action or the data are otherwise classified as not public.

Commissioner Larson's comments indicate the MPCA determined that the few data on individuals collected during the investigation were classified as private or confidential pursuant to Section 13.39; therefore, upon collection of those data, the MPCA was required to give Tennessen Warning notices to each of the Koch employees. According to both Mr. Corwin and Commissioner Larson, the MPCA did give warning statements to the employees before they were interviewed. Mr. Corwin characterized the statements as Tennessen Warnings. Commissioner Larson provided the entire statement in his comments to the Commissioner.

Although Commissioner Larson argued that the MPCA's Tennessen Warning statement fulfilled the requirements of Section 13.04, subdivision 2, the Commissioner of Administration finds that it is missing two elements. It does not list any known consequences from supplying or refusing to supply the data, and it does not specifically identify other persons or entities (outside MPCA) authorized by state or federal law to receive the data when those data become inactive under Section 13.39.

The fact that the MPCA's Tennessen Warning notice was not complete affects how the MPCA may use and disseminate the data on individuals it collected during its investigation. In a prior Advisory Opinion, 95-028, the Commissioner opined that because the employer gave no Tennessen Warning notice, the collected data could not be used against the employee. Applying that conclusion to this situation, the Commissioner opines that any data collected by the MPCA when it asked Koch employees to supply data about themselves can be used and disseminated only in a fashion consistent with what MPCA actually communicated in its notice. This communication is what the employees relied on in deciding whether to provide the data to the MPCA.

Initially, Commissioner Larson stated that the data in question were treated as Section 13.39 civil investigative data. He also asserted that because MPCA staff were functioning as law enforcement officers with primary responsibility for investigating environmental crimes or other offenses, the Tennessen Warning requirement did not apply. (See Section 13.04, subdivision 2.) In light of the fact that the MPCA chose to treat the data in question as civil investigative data and did provide the Koch employees with some form of a Tennessen Warning, it is not consistent for the MPCA to also argue that the collected data were criminal investigative data such that a Tennessen Warning was not required. For an entity to meet the obligations set forth in Sections 13.03, 13.05, and Minnesota Rules Sections 1205.0800 - 1205.1500, it should assess the data it collects, creates, and maintains, and determine the classification of those data. Because the MPCA classified the data as civil investigative data and, in fact, denied access to the data based on that statutory provision, the Commissioner's opinion is that the MPCA was required to provide the Koch employees with complete Tennessen Warnings.

Finally, to comply with the intent of the Tennessen Warning requirement, the actual notice given by a government entity needs to be as complete and accurate as possible. In this situation, the MPCA could reasonably expect that, given the operation of Section 13.39, the data collected from the Koch employees about themselves would, at some future point, change from not public to public. The purpose of the Tennessen Warning is to insure that individuals are able to make informed choices about supplying data concerning themselves to the government. If an individual is not notified that certain data s/he is asked to supply may become public, the person cannot make an informed choice. Therefore, in this situation, where the MPCA could expect that private or confidential data would, at some future point, become public, the employees should have been informed of that eventuality.

In the case of the MPCA's investigation of Koch, the Commissioner has already concluded that, pursuant to Section 181.932, the identities of the Koch employees cannot be made public. She reaches the same result in analyzing the Tennessen Warning requirement. Because the Koch employees were not informed that the data MPCA collected could be disseminated to the public pursuant to Section 13.39, any data that identify those employees cannot be made public. (See Section 13.05, subdivision 4.)

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: September 2, 1998