May 25, 1994; City of Brooklyn Park
5/25/1994 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation. Facts and Procedural History:On May 8, 1994, the Commissioner of Administration, Commissioner , received a letter from X, a resident of Maple Grove, Minnesota and an employee of the City of Brooklyn Park Police Department, hereinafter City . In this letter, X described attempts by him to gain access to data maintained about him by the City and asked for an opinion of the Commissioner concerning the issue stated under Issue below. The facts X stated concerning his disagreement with the City were as follows.On November 26, 1993, X directed a written request for copies of certain data to Michael Newberger whom X identified as an assistant chief of the police department. Specifically, X asked for corrective notices concerning him that had been placed in what X described as a field file maintained about him. He described the contents of this field file as corrective notices from supervisors, emergency notification forms and employee photos. According to X , Mr. Newberger's response, after consultation with Mr. Donald Davis, chief of the police department, was to refuse X 's request because the file in question belonged to supervisors of the City. Because of that refusal, X searched for an attorney to assist him in his attempts to get access to the data he had requested. He secured the services of Ms. Ann Walther, who, on March 11, 1994, wrote to Chief Davis requesting the same information and cited provisions of Chapter 13, the Minnesota Government Data Practices Act and hereinafter Chapter 13 or MGDPA . On March 15, 1994, Chief Davis responded to this request and, according to X , made excuses for why the information was not released and advised X to direct his request to the proper designated authority for the police department. On April 17, 1994, X made a request for certain documents concerning his employment, including his field file, to Mr. David M. Johnson, the designated authority. According to X , Mr. Johnson, in a letter received April 19, 1994, stated that the records requested by X would not be released because those records were not government data as defined in the Act. A further exchange of letters produced the same responses, at which time, X decided to request an opinion from the Commissioner. In response to X 's request, PIPA, on behalf of the Commissioner, wrote to Mr. David M. Johnson who was identified in correspondence provided by X as the responsible authority for the police department. The purposes of this letter, dated May 11, 1994, were to inform Mr. Johnson of X 's request, to provide a copy of the request to him, to ask Mr. Johnson or the City's attorney to provide any information or support for the City's position and to inform him of the date by which the Commissioner was required to issue an opinion. On May 19, 1994, PIPA received a response from Mr. Johnson. Mr. Johnson made a series of responses and arguments (summarized below) and provided copies of portions of the City's labor agreement with the union representing police officers and copies of other documents he deemed relevant. Mr. Johnson summarized the position of the City as follows. In discussing X 's November 26, 1993, request for data, Mr. Johnson stated it was the position of the City that X 's request was a request made pursuant to the City's labor agreement with the union representing X . According to Mr. Johnson, under that agreement, employees can gain access to their personnel files. Because, in Mr. Johnson's opinion, X 's request did not ask for access to data in X 's personnel file, as provided for in the labor agreement, the City determined that the data would not be provided. Mr. Johnson then discussed the City's handling of the letter, received from X 's attorney Ms. Walther, that requested access to certain data maintained by the City. Mr. Johnson stated that the City's response to Ms. Walther's request was prepared in compliance with requirements of Chapter 13 and that he had actually prepared the response letter signed by Chief Davis. In this letter, dated March 15, 1994, Mr. Johnson reiterated the City's position that X 's initial request to Mr. Newberger was interpreted by the City as a request under the labor agreement. The letter also pointed out to Ms. Walther that her citation to the provision of Chapter 13 giving her client access to data maintained about him was not correct. The letter further advised that if Ms. Walther's client was making requests under Chapter 13 those requests should have been directed to the City's director of services, Mr. Johnson. According to the letter, Chief Davis had designated the individual occupying the City's position of director of services as the responsible authority for purposes of the MGDPA. The March 15 letter then goes on to quote Ms. Walther's request. According to the letter, Ms. Walther demanded that X be provided with . . . a copy of any and all data collected on him by the Brooklyn Park Police Department. The City's letter referred to this request as being vague and a request that, in the opinion of the City, if fully complied with by the City could be financially costly to X . The letter concluded with a statement that no action would be taken on the request until the request was made more specific as to the nature and extent of the information requested, payment of costs were agreed to and personal requests or appropriate waivers from X for access to the data were received by the City. Mr. Johnson then reviewed his handling of requests for data made by X on April 17, April 20 and May 4, 1994. In these requests, X asked for a variety of data including the field file and offered arguments and statutory citations in support of the requests. Mr. Johnson stated that each of these requests were promptly replied to and that the City was on record as denying X access to the field file data because field file data is not government data for purposes of the Act. Mr. Johnson disagreed with the definition of the field file that X provided in his May 4, 1994, letter to the Commissioner. Mr. Johnson noted that emergency notification files and employee photos are kept by shift commanders and corrective notices are placed in employees' personnel files. Mr. Johnson did state that some supervisors of the City keep informal records on employees they supervise. He described these records as being akin to the desk drawer notes described in Minnesota Statutes, Section 13.32 and noted they are not identified on the City's records retention schedule or kept in a centralized location. Mr. Johnson stated that it was the assessment of the City that these supervisors' files are what X is actually requesting. Mr. Johnson went on to describe these supervisors' files as being kept as . . . an aid to the brain or memory jogger. According to Mr. Johnson, the supervisors' files concern: . . . the performance of an officer (positive and negative) observations, problem areas, training needs, directives given and matters discussed. This information is used by supervisors to prepare annual reviews, recommending disciplinary action, preparing for labor arbitrations, requesting commendations, and monitoring areas of concern. The information is eventually translated into documents that are made part of an officer's personnel file, or are discarded by the supervisor. According to Mr. Johnson, it is the City's position . . . that its employees cannot create 'government data' on the basis that all information and events which occur while working become 'government data' by virtue of that relationship alone. He argued that the supervisor's files present an issue similar to the data discussed in the case of Keezer v. Spickard, 493 N.W. 2d 614 (Minn. App. 1992). He quoted a part of that case for the proposition that individual City . . . employees can create and maintain information, while on duty time, that is not in government possession and therefore not government data. For examples of this type of information, he mentioned personal phone calls, personal business, personal schedules and calendars, fraternal contacts and labor relations and union business. It was his opinion that a determination that all information collected, created, received maintained or disseminated by employees while on duty is government data would lead to absurd results. Lastly, Mr. Johnson stated that it is the City's position that the treatment of these field or supervisors' files as government data and personnel data for purposes of the MGDPA would have a detrimental effect on the subjects of that data. Without recourse to an informal system of dealing with employee issues, supervisors would have to make formal notices that would become part of the employees personnel file that could paint pictures of employees that are not beneficial. It is the City's position that use of these types of information by supervisors are an effective supervisory tool that improves performance reviews, disciplinary actions and training assessments.
Issue:
Discussion:
In its enactment of various provisions of Chapter 13, the legislature has attempted to deal with the simple reality that governmental institutions that actually collect, create, use, maintain and disseminate data and information have tremendous power over the individuals on whom that information is maintained and on the public's ability to determine just what exactly is happening in the operation of its government. This power, in part, derives from the simple reality that governmental institutions are in the actual possession of the information and data in question. Government agencies hold the physical and electronic keys to government files, collections of data and electronic data bases that can block physical access to government data or information. More importantly government agencies, through their inherent power to describe or to not describe or to acknowledge or not to acknowledge the existence and content of government data generated by human agents who serve the agency, also hold the language keys to data and information. The use of these language keys by government agencies offers a potentially far greater problem for issues of accessibility to and accountability for government data and information than the physical keys.
To counter the potentially devastating effect of the operation of these language keys on two of the MGDPA's most important provisions, the presumption of openness and rights of subject of data, the legislature, in Chapter 13, uses exceedingly broad language to define terms like government data , and data on individuals . By doing so the legislature attempts to give persons approaching the government, and attempting to gain access to data or to exercise rights as the subjects of government data, some advantages to counter or perhaps to balance the power of the physical and language keys possessed by government agencies. In this particular instance, X is attempting to gain access to all data maintained about him by the City that employs him. He is making his requests in a situation, i.e. possible litigation against the City, where his and the City's interests are adverse to one another. It is not surprising then that when X describes some data, file or collection of information in making his requests, the City responds by telling him he is not asking for the right thing or that, in the City's view, he is not entitled to gain access to that kind of data. It is exactly these kinds of disagreements between individuals and Minnesota governmental agencies that the legislature attempts to manage through the mechanism of the MGDPA. It is the position of the City that X is not entitled to gain access to supervisors' files because those files are not government data. In support of that position, the City cites the case of Keezer v. Spickard, 493 N.W. 2d 614 (Minn. App. 1992). This case involved an appeal from a summary judgement awarded against an individual who contended that an oral dissemination of data about him, in situations where members of the public could overhear the data disclosed, violated his right to not have private data disclosed about him. However, the data in dispute in the Keezer case is not the same as the data being sought by X . The actual holding in the Keezercase is that a plaintiff could not establish a violation of the MGDPA in a situation where a government employee said something about a plaintiff, in the presence of members of the public, but the plaintiff had not established that the information that was disclosed is recorded in some physical form other than in the human brain of the speaker. (Keezer, at page 617.) In reaching this result and discussing the term government data , the Court of Appeals stated . . . that information is not 'government data' until the information is recorded somewhere other than the human brain. (Keezer, at page 617.) The holding in the Keezercase is more about what government data is not than what it is. However, the Keezeropinion does state that it is the purpose of the MGDPA to regulate every aspect of how the government manages the information it collects and stores and that as long as data is recorded somewhere other than the human brain it can be government data. (Keezer, at page 618.) In expanding on its argument relative to the Keezer case, the City argues that it is not proper to conclude that just because a supervisor's files are generated during a supervisor's on-duty time that the generation of the data in those files makes the data government data. In support of this proposition the City mentions various other types of data that can be generated by supervisors during work time, including data associated with personal business or personal phone calls, that would not be viewed as government data. However, X is not seeking access to data on personal business of supervisors. He is seeking access to supervisors' informal file data that, as described by Mr. Johnson, includes information about officer performance, problem areas, training needs, directives given and matters discussed. This is also data that, according to the City, is used for a variety of personnel related decisions including annual reviews, disciplinary matters, preparation for labor arbitration, requesting commendations and monitoring areas of concern. Government data is defined, in part as . . . all data collected, created, received, maintained or disseminated by any . . . political subdivision. It is clear from the City's description of the supervisor's files that they are data collected, created, maintained and sometimes disseminated by supervisors who act as agents of a political subdivision. In addition, based on the City's description of the supervisors' files as being used as an aid to the brain or a mind jogger , the supervisors' files, unlike the data complained about in the Keezercase, are kept in some physical form outside the mind of the individual supervisors working for the City. Application of the statutory definition of the term government data , both as a matter of simple interpretation and as an interpretation of the legislative policy inherent in the definition leads to a conclusion that the supervisors' files are government data for purposes of the MGDPA. Having determined that the supervisors' files are government data, it must be determined what type of government data the files are and how that type of data is regulated and classified by any applicable provision of the MGDPA. Determining the application of specific provisions of the MGDPA is a process of looking at the data in question and determining whether data of that type is specifically identified, defined and regulated by a specific provision of the MGDPA. As described by the City, the data in the supervisor's files is entirely concerned with the monitoring by supervisors of employees under their supervision. Minnesota Statutes, Section 13.43, subdivision 1 defines personnel data , in part, to mean data on individuals collected because the individual is or was an employee. Data on an individual is defined in part, at Minnesota Statutes, Section 13.02, subdivision 5, as all government data in which an individual is or can be identified. Given those definitions and the City's description of the supervisors' files, those files are personnel data for purposes of the MGDPA. Pursuant to Minnesota Statutes, Section 13.43, personnel data are public if they are listed in subdivisions 2 and 3 of the section. Given the City's description of the supervisor's files, it would appear that most of the data contained in them are classified as private data with some of the data, depending on the actual content, classified as public. For example, the City's description of the files mentions that they sometimes contain data concerning disciplinary actions. To the extent that a disciplinary action became final and a supervisor's file was part of the data documenting the basis for that action then that part of the file would be classified as public. In any event, because the supervisors' files are classified as private or public, individual employees such as X who are identified in those files have a right to gain access to the data maintained about them in the supervisors' files. (See Minnesota Statutes, Section 13.04, subdivision 3.) Opinion:Based on the correspondence in this matter, my opinion on the issue raised by X is as follows:
Signed:
Debra Rae Anderson
Dated: May 25, 1994
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Legislative authority and intent
Government data (13.02, subd. 7)
Government data
