Discussion:

Minnesota Statutes, section 13.43, classifies data collected, created, and maintained about employees of government entities. Pursuant to subdivisions 2 and 4 of that section, certain personnel data are classified as public, and all other personnel data are private. Private data are accessible to the data subject but not to the public. (See section 13.02, subdivision 12.)

Section 13.43 specifically classifies data relating to complaints or charges made against a government employee. If the employer does not take disciplinary action, very few of the data associated with the complaint and/or charge are public. If, however, the employer does discipline the employee, as appears to be have occurred in the present case, and there is a final disposition, the following data become 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 any data that would identify confidential sources who are employees of the public body. (See 13.43, subdivision 2 (a) (5).)

In relevant part, pursuant to subdivision 2 (b), a final disposition occurs when:

the [government entity] makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. (Emphasis added.)

In a letter dated November 17, 1998, M requested access to all the Department's data about him/her. Ms. Watson wrote that at that time, the Department denied access to M because a civil legal action was pending and the data were therefore classified as confidential pursuant to section 13.39. She stated:

[an assistant attorney general and her manager, representing the Department determined] that a pending civil legal action existed for the following reasons: (1) MMA [the union representing M] had not yet decided whether to arbitrate [M's] termination; and (2) [M's] Charge of Discrimination, previously filed with the Minnesota Department of Human Rights, was pending.

Ms. Watson further wrote:

When [M] made a second request to DOER for data in December 1998, that request was forwarded to DHS. Although [M] had then withdrawn [M's] grievance with MMA, [M's] Human Rights Charge of Discrimination continued to be pending (as it currently is). Accordingly, when DHS responded to [M's] December request for data, that data continued to be classified as civil investigative data, retained in anticipation of pending civil legal action, and thus confidential pursuant to Minn. Stat. 13.39 subds. 1 and 2....

Minn. Stat. 13.39, subd. 3 provides that civil investigative data becomes inactive upon the occurrences of any one of several events. In [M's] case, none of those events have yet occurred. In fact, DHS and its attorneys still wish to defend [M's] pending human rights charge and any potential claims arising from [M's] termination; the statute of limitations has not yet expired for [M] to file a civil law suit; and there has not been an exhaustion or expiration of the rights of appeal by either party as to [M's] Charge of Discrimination or any related legal causes of action arising from the same set of facts and circumstances. Thus, the civil investigative data, arguably, has not become inactive.

The problem with Ms. Watson's argument is that it disregards action the 1990 Legislature took in response to a 1989 Minnesota Supreme Court decision. In Annandale Advocate v. City of Annandale, 435 N.W.2d 24 (Minn. 1989), the Court found that a final decision of a City to discipline one of its employees was not the final disposition of the disciplinary action, because the employee had exercised his right under the Veterans Preference Act to have a further hearing on the matter. The Court acknowledged that its interpretation would result in delay of months and even years before disciplinary records could be released to the public. (See Annandale at 29.)

The Legislature, in an effort to prevent situations in which data about disciplined government employees might remain not public forever or for significant periods of time, enacted language that requires government entities to treat data about a final disciplinary action as public. The language states that a final disposition occurs when the government entity makes its final decision about the disciplinary action regardless of the possibility of any later proceedings or court proceedings. (See section 13.43, subdivision 2 (b).)

In this case, it appears there has been a final disposition within the meaning of section 13.43, subdivision (2) (b). M was represented by a union. Therefore, a final disposition occurred at either of two points in time: 1) at the conclusion of an arbitration hearing; or 2) when, according to the collective bargaining agreement, the time had expired for M to elect arbitration. Based on the documentation provided, the Commissioner knows only that M initially decided to pursue a grievance but subsequently withdrew it. Neither Ms. Watson nor Ms. Sarnoski has suggested that M can still elect arbitration. Therefore, the possibility of electing arbitration is no longer a barrier to there having been a final disposition of M's discipline.

DHS' position is that it can keep the data about M confidential because there is a possibility that M may initiate a later proceeding or court proceeding. This is exactly what the 1990 Legislature tried to prevent when it enacted the section 13.43 language. Therefore, the following data are public and accessible to M: the final disposition of the disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding any data that would identify confidential sources who are employees of the public body.

Finally, the Commissioner acknowledges it is possible that some of the data M requested are not the type of data classified as public by section 13.43, subdivision 2 (a) (5). If any such data were collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action or are retained in anticipation of a pending civil legal action, and DHS' chief attorney has determined that a civil legal action is pending, the data are confidential until the investigation becomes inactive. (See section 13.39.)

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Ms. Sarnoski is as follows:

Signed:

David F. Fisher
Commissioner

Dated: April 13, 1999