September 12, 1995; University of Minnesota
9/12/1995 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 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 28, 1995, PIPA received a letter requesting this opinion from Marshall Tanick, an attorney, on behalf of a client, a member of the faculty of the University of Minnesota. Mr. Tanick explained that the University, in response to a media request, was preparing to disclose to the public information about his client which he believed to be private data. Mr. Tanick enclosed, and later submitted, various documents relating to this issue. On July 31, 1995, PIPA, on behalf of the Commissioner, wrote to Mr. Mark B. Rotenberg, University General Counsel. The purposes of that letter were to inform Mr. Rotenberg of Mr. Tanick's request, to ask him to provide information or support for the University's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Tanick and Mr. Rotenberg were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On August 7, 1995, PIPA received a letter in response from Tracy M. Smith, University Associate General Counsel. A summary of the detailed facts of the matter is as follows. According to Mr. Tanick, in the summer of 1991, his client hired a University student through the University's student employment service, to do yard work for him at his home. Subsequently, the client attempted to contact the student to see if she would be interested in continued employment. The student did not respond to his messages. She did, however, contact the University's Office of Equal Opportunity and Affirmative Action (EEO) about the faculty member. The University contacted the faculty member about the matter, and asked him to sign a statement to the effect that he would have no further contact with the student, and would abide by the
University's sexual harassment policy. Both Mr. Tanick and Ms. Smith enclosed redacted copies of the document signed by the student and the faculty member. The text of that document, entitled Letter of Agreement, reads, in part, as follows:
According to Mr. Tanick, the University represented to his client that if he signed the statement, the matter would be closed, and would remain totally confidential and would not be disclosed to anyone. According to Mr. Tanick, [t]he faculty member vigorously denies any impropriety, but he signed the document in order to bring the matter to a resolution, based upon the assurances of confidentiality given to him. In response, Ms. Smith wrote that due to personnel changes, and the fact that the faculty member did not identify the person who gave him the promise of confidentiality, the University cannot determine, and does not concede that such a promise was made. Ms. Smith also raised some additional issues, which will not be addressed in this opinion.
Issue:
In his request for an opinion, Mr. Tanick asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.43, subdivision 1, personnel data, are . . . data on individuals collected because the individual is or was an employee of [a government entity subject to Chapter 13.] It appears that the data in question were collected because certain allegations were made about an employee, the faculty member, to his employer, the University. The University collected data about the complaint, and entered into an agreement with the faculty member and the complainant. Therefore, the data in question are personnel data.
Section 13.43, subdivision 2, provides that certain personnel data are public. The provisions in that subdivision which are possibly relevant to this opinion are the following (see Laws of Minnesota for 1995, Chapter 259, Section 7):
Mr. Tanick wrote that the student, in her contact with the EEO office, made no signed, formal charge against Mr. Tanick's client. However, the University looked into the matter, and the Letter, which the faculty member signed, makes reference to the complaintbrought forward by the student, and states that the terms of the agreement were appropriate resolutions of her complaint. (Emphasis added.) Clearly, pursuant to the statute, the fact that a complaint had been made against the faculty member, and its status, i.e., that an agreement had been reached, are public data. In their comments, both Mr. Tanick and Ms. Smith discussed whether or not the Letter of Agreement constitutes disciplinary action. It is the position of both of them that it does not. From the information provided, their conclusions appear to be correct. Therefore, whether any of the detailed contents of the Letter are public is dependent upon whether, pursuant to Section 13.43, subdivision 2, the Letter contains the terms of any agreement settling any dispute arising out of the employment relationship. The document in question is entitled Letter of Agreement. It makes reference to an agreement made . . . in regard to the complaint brought forward . . .. It says that the faculty member agreed to certain stipulations. It states that the student's signature on the document is indication of . . . her concurrence with these measures as appropriate resolutions of her complaint. The faculty member's signature is indication that he . . . read and understood these agreements and [entered] into them freely. Mr. Tanick's position is that the Letter does not constitute an agreement 'settling any dispute,' because there was no claim pending. . . . The representations that were made to [his client] concerning confidentiality, which he relied upon, also negate the 'public' nature of the document. Ms. Smith stated that it was the University's position that the Letter does constitute a settlement agreement within the meaning of Section 13.43. She did not elaborate on the basis for that position. The language in Section 13.43, subdivision 2, as it relates to the issue of settlement agreements and their classification, is very clear. The language encompasses any agreement settling any dispute arising out of the employment relationship. (Emphasis added.) Although the Legislature did not provide a specific definition of agreement in this provision, it appears that the agreement entered into here is of the kind contemplated by the Legislature when it enacted this provision.* The faculty member and the student reached an understanding with respect to the effect of their past history on their relative rights and duties. The faculty member agreed to have no further contact with the student, and agreed to abide by the University's sexual harassment policy. In other words, the faculty member agreed to settle a dispute, i.e., the student's complaint, by agreeing to the terms set forth in the Letter. Therefore, the terms of the agreement are public data, pursuant to Section 13.43, subdivision 2, except to the extent that data which identify the student may be private educational data, pursuant to Section 13.32. Mr. Tanick has raised the issue of the effect of a promise of confidentiality. According to Mr. Tanick, his client relied upon the University's representations of confidentiality, and those representations negate the 'public' nature of the document. According to Ms. Smith, the University cannot determine, and does not concede that such a promise was made. Apparently there is a factual dispute as to whether any representations of confidentiality were made. However, the Legislature has enacted clear policy related to the issue of the public nature of any kind of agreement settling any kind of dispute arising out of the public employment relationship. Although this kind of agreement may have been private at the time it was entered into, the Legislature, in its 1991 enactment of Section 13.03, subdivision 9, provided that [u]nless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received. (Emphasis added.) (See Laws of Minnesota for 1991, Chapter 319, Section 2.) The Legislature has further underscored its position that all settlement agreements involving public employees must be public, by enacting Section 13.08, subdivision 6. That provision, enacted in 1991, states that [n]o cause of action may arise as a result of the release of data contained in a termination or personnel settlement agreement if the data were not public data as defined in section 13.02, at the time the agreement was executed but become public data under a law enacted after execution. (Emphasis added.) (See Laws of Minnesota for 1991, Chapter 319, Section 30.) In 1993, the Legislature clarified that the terms of any agreement settling any dispute arising out of the public employment relationship were public. (See Laws of Minnesota for 1993, Chapter 351, Section 6.) Consequently, the Letter of Agreement contains public personnel data, regardless of the classification of those data at the time the Letter was executed. Therefore, regardless whether the University made any representations of confidentiality to the faculty member at the time that the Letter of Agreement was executed, the terms which settled the dispute are public personnel data, and upon request, must be disclosed to the public. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Tanick is as follows:
Signed:
Elaine S. Hansen
Dated: September 12, 1995
* Absent a specific definition in the statute of the term agreement, it is appropriate to consult a dictionary for guidance. (See Minnesota Statutes Section 645.08.) Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, Saint Paul, 1968, provides several definitions of agreement which are applicable, including the following: in law a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. Clearly, the Letter is such a concord of understanding and intention relative to these two parties. |
Personnel data
Statutory construction (Ch. 645)
Settlement agreements
Promise of confidentiality
Words and phrases construed (645.08)
