Issue:

In her request for an opinion, Ms. Ellingson asked the Commissioner to address the following issue:

Discussion:

Data about current and former government employees are classified pursuant to Minnesota Statutes, section 13.43, which provides a listing of the public types of personnel data and classifies most other personnel data as private. Private data are not public but are accessible to the data subject and those individuals within the government entity whose work assignments reasonably require that they gain access to the data. (See section 13.02, subdivision 12, and Minnesota Rules section 1205.0400.)

Pursuant to subdivision 2 (a) of section 13.43, the following personnel data are public:

(4) the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action;

(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body.

In addition, section 13.43, subdivision 2 (b) provides:

For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator. [Emphasis added.]

Accordingly, the classification of data relating to the final outcome of complaints or charges against a public employee depends upon whether a “final disposition” of any disciplinary action has occurred. If there has been no final disposition of a disciplinary action, only limited data regarding the incident are public, i.e., whether a complaint or charge exists, and the status of any such complaint or charge. If there has been a final disposition, additional data become public.

In the case of this opinion, SCSU disciplined M. SCSU is part of a statewide system known as MnSCU. M is a member of IFO and is covered under a collective bargaining unit. Ms. Ellingson wrote, “a grievance was initiated under the grievance procedure of the applicable collective bargaining agreement between IFO and MnSCU regarding the discipline of [M].” Ms. Ellingson added that the IFO “has not yet requested arbitration.” Mr. Cunningham, on behalf of MnSCU wrote, “[The] grievance is currently pending.” Therefore, pursuant to section 13.43, subdivision 2, a final disposition of the disciplinary action has not occurred and only the following data are public: M’s name; the fact that a complaint exists; and the status of that complaint. Any of the remaining data in question that are about M or other government employees are classified as private.

As stated above, private data are accessible by the data subject. However, one exception to this general rule occurs in situations when the government entity determines that the data are civil investigative data. (See Section 13.39.) Subdivisions 1 and 2 of section 13.39 provide that when the chief attorney acting for an entity determines that a civil legal action is pending, the following data are confidential: data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action; or data retained in anticipation of a pending civil legal action. Once the investigation is inactive, most of those data become public. (See section 13.39, subdivision 3.)

In her opinion request, Ms. Ellingson wrote, “IFO understands that the Minnesota Attorney General’s Office serves as the chief legal officer for campuses of the State University System and that Annette R. Wilson, author of [memo denying access to data], does not serve as chief legal officer for St. Cloud State University.”

In his response, Mr. Cunningham wrote, "The chief attorney for MnSCU has determined that grievance proceedings pursuant to the IFO contract are 'pending civil legal actions until there is a final disposition.' Since the grievance process is pending, the investigatory documents are confidential pursuant to Minn. Stat. section 13.39, subd.2 (1998)."

One part of Mr. Cunningham's argument is problematic; he did not clearly identify MnSCU's chief attorney. Ms. Ellingson asserted that the Minnesota Attorney General's Office, not Ms. Wilson, is the chief attorney for SCSU/MnSCU and Mr. Cunningham neither confirmed nor denied her statement. Identifying the person who serves in this capacity is important because if Ms. Wilson is not the chief attorney, she cannot make the determination that a civil legal action is pending.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: June 18, 1999