Issues:

In H's request for an opinion, s/he asked the Commissioner to address the following issues:

Discussion:

Issue 1 - Minnesota Statutes Section 13.04, subdivision 2, requires that when a government entity collects private or confidential data from the data subject about the data subject, the entity must provide a Tennessen Warning notice. The notice is comprised of four elements.

In the present case, H alleges that when HCD collected H's home address and social security number at the time of her/his hiring, H did not receive a Tennessen Warning notice. In his response, Mr. Michels wrote, HCD has no information available to it to demonstrate whether at the time that [H] applied for employment [H] was given a Tennessen Warning. Mr. Michels further asserted that based on a recent Minnesota Appellate Court case, Manteffell v. City of St. Paul, ___N.W.2d ___, Ct. File C5-97-696 (Minn. Ct. App. November 18, 1997), a claim for a violation of the Act is barred if it is brought more than six years after the date of the alleged violation.

First, although an action by H for an alleged violation by the HCD of H's right to receive a Tennennsen Warning notice may be barred by the result in the Manteffell case, that result does not preclude the Commissioner from issuing an advisory opinion.

Second, based on the information provided by both parties, the Commissioner is unable to determine whether H's rights under Section 13.04, subdivision 2, were violated. H states that s/he did not receive a notice and HCD cannot say for sure that H did or did not receive a notice. Because a public employee's home address and social security number are private data (see Sections 13.43 and 13.49), if H did not receive a Tennessen Warning notice regarding the collection of those data, her/his rights were violated. The factual dispute here demonstrates the importance of documenting the fact that a Tennessen Warning has been given.

Issue 2 - H alleges that the HCD inappropriately disseminated private data address, possibly social security number about him/her to Lori A. Olson Investigations. H provided to the Commissioner documents from the National Credit Information Network indicating that a copy of H's credit report had been provided in March and April 1994 to Olson Investigations for employment purposes. Both of the documents stated, This report may have been requested in reference to . . . Hennepin Conservation District. H also provided documentation demonstrating that the HCD issued a check to Olson Investigations for $163.48 on May 3, 1994.

In his response, Mr. Michels wrote there is no evidence that private data were released to Olson Investigations.

While Mr. Michels correctly asserts there is no demonstrable proof that HCD disclosed private data about H to Olson Investigations, based on a copy of an April 7, 1997, memo from the [HCD] temporary manager to H, it is clear that some information about H was disseminated. In the memo, the manager wrote, In the course of reviewing the issues raised in your EEOC claim and discussions regarding potential settlement, [the HCD] sought confirmation of the documentation of your academic record provided by you for your personnel file. This was the intended scope of his request to the Lori A. Olson agency... If private data about H were disclosed to the private investigator without H's consent or in violation of a provision of a Tennessen Warning notice, H's rights pursuant to Section 13.04 were violated.

Issue 3 - H alleges that the HCD did not respond properly to a request for access to data on April 5, 1994. In that request, H wrote, I wish for the District to direct the private investigator...and her assigns, to turn over to me all copies and originals of all information her organization collected about me.... H also requested access to all files at the District which regard me. In response to H's request, in a letter dated April 7, 1994, the HCD manager wrote:

[t]he District has directed the agency to seal the files and, if you so desire, will request that they be destroyed. The District is not in a position to direct the release to you of any of the results of the investigation which was conducted....The District will certainly make your personnel file...available for your review at any time. I conducted a review of these files with you on April 6 and April 7.

In his/her opinion request, H stated, [HCD] denied my request to speak with the Olson Agency, claiming the District was not in a position to direct the Olson Agency to confer with me directly' about my personal information, even though he referred to them as a contractual agent for the District. H also stated that s/he did review the personnel files.

In his response, Mr. Michels wrote, The Act does not allow individual subjects of data to demand that originals and copies of data be returned to them. The subjects of data are only entitled to inspect and make copies of the data which they are subject.

Per Section 13.02, subdivision 7, data received by HCD from Olson Investigations are government data. If H is the subject of those data, then the data should be accessible to H. However, H has no rights under Chapter 13 to require HCD either to turn over to him/her or to destroy copies of the data being kept by Olson Investigations. Destruction of some of the data generated by Olson Investigations could by accomplished by a successful data challenge brought by H per Section 13.04, subdivision 4.

Issue 4 - H alleges that the HCD never responded to a request dated June 14, 1994, in which H asked to see the letter of agreement between HCD staff and Olson Investigations.

In his response, Mr. Michels wrote, HCD never had a written contract with the [Olson Investigations]. Thus, there was nothing to be produced to [H].

Chapter 13 and Minnesota Rules Chapter 1205 provide that requests for access to public government data be responded to in a prompt manner and within a reasonable time. However, there is nothing in Chapter 13 requiring a government entity to create data that do not exist. If the data requested by H did not exist, then HCD could not have provided H with access. However, pursuant to Section 13.03, HCD is required to respond to requests for access to data. A lack of response is not an appropriate response; HCD should have responded that the data did not exist. (For additional information on this issue, see Advisory Opinions 95-029, 97-020 and 97-055.)

Further, Minnesota Statutes Section 15.17 does require government entities to make and keep records documenting their official activities, which would include expenditures of public funds. It is surprising that HCD would expend government funds without a written contract or other documentation explaining that expenditure.

Issue 5 - In a letter dated November 5, 1996, H was advised by H's union business agent we requested that all your files be opened for us under [Chapter 13] and inspected the files. The agent further wrote, We found no discipline, grievances or complaints about you at that time. In H's opinion request, s/he wrote:

In October 1996, the union business agent and I made a request to management that all [my] files be opened for us under the Government Data Practices Act' for our inspection....A week later [from April 1, 1997] the manager sent me four documents about me that I had never seen before, all of which pre-dated the November 1996 request to inspect documents. These documents alleged inappropriate conduct by me...I emphasize again that in November 1996 I had asked for all documents under the custody and control of the District' and was led to believe there were no investigations, grievances, complaints or documentation of any problems.

H submitted an Exhibit Q, which s/he described as documents supplied after November 1996 Inspection. Exhibit Q is comprised of five documents: two are addressed to H from the HCD manager; two are from the manager addressed to File ; and one is addressed to the manager from another HCD staff member. Upon examination of the documents comprising Exhibit Q, it is the Commissioner's opinion that some of the data in each of the documents are about H. However, some of the data are also about other HCD employees.

In his response, Mr. Michels wrote that HCD staff interpreted H's request to be for H's personnel file, not everything about [H]. He also stated:

Further, the nature of [H's] claimed violation is unclear in that [H] fails to identify that which was allegedly not provided to [H]. The request is even more confusing by the fact that [H] refers to two documents and then to Exhibit Q, which consists of five documents. To the best of HCD's ability, it is suspected that the allegations refer only to two of the documents under Exhibit Q, namely the two memoranda from [the manager] to File. These two documents were not part of [H's] personnel file. They were drafted to and retained by [the manager] in his personal file. They were produced to [H] when [H] specifically requested them. Therefore, while it appears that [H] did not receive access to these documents in November 1996, it was because [H] did not ask for them, not because HCD withheld them from [H].

The Commissioner does not understand the relevance of the distinction Mr. Michels makes between H's personnel file and everything about [H]. If some of the data were not disclosed because they are data about another HCD employee, that is the basis upon which access could have been denied. However, that argument is problematic for the following reason. If HCD had made a determination that the data were not accessible to H, why, as Mr. Michels stated, were they later produced to H? (For further information on this issue, see Advisory Opinions 94-023, 94-035 and 96-021 which state that data about employees are available to them upon a proper request regardless of how an employer labels the data or where the employer chooses to store the data.)

Assuming H's request was for access to all data about him/her, and HCD was in possession of the documents labeled as Exhibit Q, some of the data in those documents should have been made accessible to H.

Issue 6 - In H's opinion request, H stated that during a performance review on March 26, 1997, as part of a discussion of staff relations, H wrote there had been no comments or complaints - that everything received from other persons had been shown to H. H wrote, I asked for the basis for his comments. The manager said that the basis for his opinion about me was contained in files he had about me which he said he did not have to show me. He said because he had a law degree, certain materials collected about me were privileged.'

In his response, Mr. Michels wrote that one problem with this issue is that H does not identify what was requested but not produced. He stated:

It appears from [H's] narrative that [H] is referring to the same documents which are the subject of [Issue 5]....HCD denies that it has ever denied access to [H] for any data requested under the Act on the grounds that they were within the scope of the attorney-client privilege because [the former manager] had a law degree....[t]he documents in question were provided to [H] when [H] specifically asked for them.

Mr. Michels is correct that it is not entirely clear whether H made a request per Chapter 13 for access to data. In addition, there is a dispute as to whether the HCD manager denied H access to data because he had a law degree or because such data were protected by the attorney/client privilege.

However, if the HCD did respond in the manner described by H, the response is problematic because no provision in Chapter 13 allows for a denial of access because the person maintaining the data has a law degree. Further, it is unlikely that the type of data relating to H in her/his capacity as an HCD employee could be classified as Attorneys Data under Section 13.30 merely because the person generating or maintaining the data is an attorney. (See Advisory Opinions 95-040, 95-045, 95-049 and 96-038.) Thus, if HCD did deny access based on the comments by the manager, such a denial appears to be inappropriate. Alternatively, if the content of the conversation is not as described by H, there is no issue.

Issue 7 - As discussed above regarding Issue 6, H alleges that at the time of H's performance review on March 26, 1997, s/he asked if there had been any complaints or grievances or comments from other staff. Later, through a memo dated July 8, 1997, addressed to H from HCD management, H became aware that HCD had come into possession of certain documents in March 1997. H apparently believed these documents should have been made accessible to H when s/he previously requested access to data about him/her. In the July 8, 1997, memo, HCD management wrote, It is my understanding that HCD first came into possession of the documents in March, 1997...These documents evidence acts of insubordination and disloyalty to HCD....The documents are relevant to your demonstrated performance problems, specifically your act of insubordination and disloyalty in...

In his response, Mr. Michels wrote:

The correspondence to which [H] refers was a letter written by [H] to [X], an official with Teamsters Local 320, wherein [H] requested that the Union assist [H] in removing [H's] position from HCD...[Mr. Michels provided the Commissioner with a copy of this letter.] HCD interpreted [H's] request to mean data about which [H] is the subject. The subject of this data is not [H] but rather, the proposal to transfer certain positions, equipment and budgets from HCD...Because [H] is not the subject of the [letter], the document was not provided to [H] as it was not considered to be within the scope of [H's] request to review data about [H].

First, as stated above in the discussion of Issue 6, it is not entirely clear that H made a data practices request for access to data about him/her. Second, it is also not clear to the Commissioner exactly which documents are the subject of H's inquiry. Mr. Michels apparently believes that H is referring to only one document. This is confusing because the letter from HCD management dated July 8, 1997, refers to more than one document.

In discussing the letter he believes to be the subject of H's request, Mr. Michels argued that it was not about H; that H was not the subject of the letter. Upon examination of the letter, the Commissioner respectfully disagrees; it appears to her that some of the data may be data about H. For example, H wrote that the bargaining unit has several employees who are hostile to H and that H did not support a pending Decertification Petition. Because these types of personnel data are not listed as public in Section 13.43, subdivision 2, they are private and not accessible to members of the public.

In conclusion, if H made a data practices request for access to data regarding any complaints, grievance, or comments of which s/he is the subject, any such data in the possession of HCD should have been made available to H.

Issue 8 - H alleges that data from one of the documents discussed above in Issue 7 were disseminated to third parties (two consultants). H wrote, In that meeting [the manager] quoted from one of my letters and told the consultants he was in possession of my letters. One of the consultants subsequently told me about this conversation.

In his response, Mr. Michels wrote, Although [H] does not specify what information was allegedly provided to the two consultants,' it appears that the data to which [H] refers is the [letter written by H to the union official]. Mr. Michels added that because the letter is classified as public data, no violation of Chapter 13 occurred if the contents were disclosed.

As Mr. Michels stated, it is not clear to which document H refers. In addition, there appears to be some disagreement as to whether a conversation between HCD management and two consultants took place in which data were disclosed. If such a discussion did occur and private data about H were disclosed, H's rights under Chapter 13 were violated. If no private data about H were disclosed, no violation occurred.

Issue 9 - In a memo dated June 25, 1997, addressed to HCD management, H wrote, I must also insist that...you provide me with an [sic] a list of people to whom my personal mail has been distributed...

HCD management responded to the June 25, 1997, correspondence in a memo dated July 8, 1997. In what appears to be the relevant part, the manager wrote, To the best of my knowledge,the only persons to whom the documents have been disclosed after they were given to [the previous manager] are me, the Board of Supervisors and the HCD's attorneys.

In his response, Mr. Michels wrote that Chapter 13 does not require HCD to create government data. He added, HCD does not have a list of all people who have received H's personal mail.' Therefore, the failure to create such a list does not violate the Act.

H requested a copy of data that do not exist. Chapter 13 does not require government entities to create data that do not exist. Therefore, HCD was under no obligation to create a list in response to H's request. In attempting to name persons whom might have gained access to data about H, HCD went beyond requirements imposed by Chapter 13. However, as part of its response, HCD might also have informed H that the data s/he requested in the form of a list did not exist in that form.

Issue 10 - H alleges that data about H contained in a July 14, 1997, report were inappropriately disseminated to other HCD staff.

The stated purpose of the report, a copy of which was provided to the Commissioner, was to review the operations of HCD and to make recommendations to improve the effectiveness and efficiency of operations and to improve the working atmosphere in the office. In preparing the report, the authors interviewed staff and other persons who work on a regular basis with HCD. Also included in the 1997 report were references to three 1994 reports regarding problems within the HCD.

In his response, Mr. Michels wrote that the report is public data; that it was attached to the agenda of the July Board of Supervisors meeting and discussed by the Board during this open meeting. Mr. Michels added that H is not the subject of the 1997 or 1994 reports and that the data cannot, therefore, be classified as private or confidential.

Upon review of the report, it is the Commissioner's opinion that some of the data in the 1997 report are about H. There is a fairly detailed discussion about the two factions existing in the office and the extent to which H plays a role in one of the factions. Further, discussion of one of the 1994 reports also contains data about H. For example, it names H and describes him/her in terms of whether s/he is an easy person to work with. Because the data in the report about H are not made public by Section 13.43, subdivision 2, those data are private.

In addressing the issue of the report, Mr. Michels also referred to Minnesota Statutes Section 471.705, the Open Meeting Law, which provides that discussion of certain kinds of data at a meeting required to be open to the public may make the data public. However, for otherwise not public data to be become public by virtue of being discussed at an open meeting, the disclosure must relate to a matter within the scope of the public body's authority and [must be] reasonably necessary to conduct the business or agenda item before the public body. (See Section 471.705, subdivision 1d (a).) It is not clear to the Commissioner if these conditions were met when the Board of Supervisors discussed the data about H at a public meeting.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by H is as follows

Signed:

Elaine S. Hansen
Commissioner

Dated: January 9, 1998