July 27, 1995; Minnesota Office of Administrative Hearings
7/27/1995 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.
Facts and Procedural History:For purposes of simplification, the information presented by the citizen who requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.On June 30, 1995, PIPA received a letter requesting this opinion from David R. Vail, an attorney, on behalf of a client. In his letter, Mr. Vail described his attempts to gain access to certain data maintained by the Office of Administrative Hearings (OAH.) Mr. Vail enclosed copies of correspondence with OAH. In response to Mr. Vail's request, PIPA, on behalf of the Commissioner, wrote to Kevin Johnson, Chief Administrative Law Judge, Office of Administrative Hearings. The purposes of that letter, dated July 5, 1995, were to inform Mr. Johnson of Mr. Vail's request, to ask him or OAH's attorney to provide information or support for OAH's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On July 26, 1995, PIPA received a letter in response from Rolf G. Hagen, Assistant Chief Administrative Law Judge, OAH. (In subsequent correspondence, Mr. Vail was notified that the Commissioner would be taking a portion of the additional 30 days allowed by the opinion statute to issue this opinion.) A summary of the detailed facts surrounding this issue is as follows. Mr. Vail represents an employee in a workers' compensation claim. According to Mr. Vail, Adam S. Wolkoff, attorney for the employer and insurer involved in the claim, filed a Petition for Reassignment Pursuant to Permanent Affidavit of Prejudice for Cause. According to Mr. Vail, attached to that document was another document, an Order on Permanent Affidavit of Prejudice for Cause. That Order refers to affidavits signed by Mr. Wolkoff, and another attorney, which apparently relate to an earlier case before OAH. Copies of those affidavits were not provided to Mr. Vail. The Order on Permanent Affidavit of Prejudice for Cause states: [t]hat Compensation Judge Deanna McCashin be, and the same is, hereby precluded from presiding over any matter in which any party is represented by Attorney Michael D. Aafedt and Attorney Adam S. Wolkoff. Accordingly, Judge McCashin was reassigned from Mr. Vail's client's case. Subsequently, Mr. Vail corresponded with OAH on a number of occasions, to question the Order, and to gain access to copies of the affidavits signed by attorneys Aafedt and Wolkoff. Although the affidavits were not made available, Mr. Johnson rescinded the Order. However, the case was not reassigned to the original judge, Judge McCashin. Mr. Vail objected to the removal of Judge McCashin, and continued to seek access to the affidavits, to learn the basis upon which the Order had originally been issued. In a letter dated June 7, 1995, Assistant Chief Administrative Law Judge Rolf G. Hagen told Mr. Vail that his request for access to the affidavits was denied, because they . . . contain private data within the scope of Minnesota Statute section13.43, Personnel Data . . . and, as such, the data may not be released. Mr. Vail maintained that it was his belief that the affidavits in question were part of the files relating to an earlier case, and stated that [i]t is difficult to conceive of a situation where an attorney files an Affidavit of Prejudice on a compensation judge without disclosing the basis of the alleged prejudice, or even the Affidavits in question. He reiterated his belief that the affidavits are public data. In his response to the Commissioner, Mr. Hagen stated that [i]t is the position of [OAH] that the information sought by Mr. Vail is not public data; specifically, that the information sought is private personnel data within the scope and meaning of Minn. Stat. section 13.43, Subd. 4, and, therefore, may not be released except pursuant to a court order. Issue:
In his request for an opinion, Mr. Vail asked the Commissioner to address the following issue:
Discussion:
Mr. Vail represents an employee in a workers' compensation claim, which is before OAH. Mr. Wolkoff represents the employer and insurer in that claim. Mr. Wolkoff filed a petition to remove the compensation judge, Judge McCashin, pursuant to an earlier Order on Permanent Affidavit of Prejudice for Cause. That Order referred to affidavits filed by Mr. Wolkoff and Mr. Aafedt, but did not contain any details of the basis of their assertion of prejudice. Judge McCashin was removed from Mr. Vail's case. That Order was rescinded, but Judge McCashin was not reassigned to Mr. Vail's client's case. Mr. Vail wants to know the basis for the judge's removal, and accordingly, seeks access to the affidavits. He maintains that the affidavits, as part of the record of a case which came before OAH, are public data.
OAH told Mr. Vail that the statutory basis for denying him access to the affidavits is that they contain private personnel data, pursuant to Minnesota Statutes Section 13.43, and are therefore inaccessible to him. The question of the proper classification of the data in question, i.e., the affidavits, is complicated by somewhat vague language in statute and rule. The issue is further complicated by the fact that OAH is an executive branch agency which functions like a court; its hearings are quasi-judicial proceedings. However, the rules that govern judicial records are not applicable to OAH. (See the Supreme Court's Rules of Public Access to Records of the Judicial Branch.) OAH is subject to Chapter 13, and is subject to administrative rules. (See Section 13.02, subdivision 17, and Section 176.83.) A review of the applicable provisions of statute and rule, which follows, illustrates the complexity of determining the appropriate classification of the data contained in the affidavits. Pursuant to Section 13.03, subdivision 1, [a]ll government data collected, created, received, maintained or disseminated by a state agency . . . shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as [not public.] Both the Minnesota Department of Labor and Industry and OAH are involved in the processing of workers' compensation claims. Minnesota Statutes Chapter 176 governs workers' compensation claims. Minnesota Rules Chapter 1415 governs workers' compensation hearings at OAH. Upon the filing of a workers' compensation claim, a file is created, which contains some data which are not public. Pursuant to Section 176.231, the initial report filed with Labor and Industry is classified as private. The classification of data in the file other than the initial report is not as clear. However, the implication in Minnesota Rules Part 1415.0600, which states that a person who is not a party to a claim can gain access to a file with a written authorization from a party, is that the files are not accessible by the public. (Note: Minnesota Rules Chapter 1415 provides no special definition of the term file. ) Minnesota Rules Part 1415.2900, subpart 7, describes the contents of the recordof a case, which includes all pleadings, motions and orders . . . and the entire record from any previous hearing which is relevant to the issues under consideration and those parts of the . . . file on the matter which the compensation judge incorporates . . .. That Part of the Rules also states that any person may request a copy of the transcript of the hearing. In addition, Section 176.401 states [a]ll hearings before a compensation judge are public. Section 176.391, subdivision 3, states [t]he report shall be made a part of the record of the case and be open to inspection as such. (Emphasis added.) Therefore, it appears that the record of the case is accessible to the public, including those parts of the file which are incorporated into the record. Section 175.10, which governs the workers' compensation division of Labor and Industry, also appears to add weight to that conclusion. That provision states [a]ll the proceedings of the division shall be shown on its records, which are public records. (Emphasis added.) Taken together, these statutory provisions appear to indicate that anything which is made a part of the record, including the affidavits, are open to public inspection. As further support for that conclusion, Section 175A.06 states that the hearings of the workers' compensation court of appeals are open to the public, and that [a]ll the proceedings of the court shall be shown on its records, which shall be public records. (Decisions of OAH compensation judges may be appealed to that court.) In addition, the legislature has demonstrated its clear intent with respect to records of public proceedings in general, in its enactment of Section 471.705, the open meeting law. That Section provides that [d]ata discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public. (Emphasis added.) Clearly, if the contents of the affidavits were disclosed at a public hearing, they would be accessible to the public through the transcript of the hearing. (See Minnesota Rules Part 1415.2900, subpart 7.) Although it is not clear, it appears that the recordof the case is also public, on the basis of the sections of statute cited above. Therefore, it appears that even if the contents of the affidavits were not disclosed at a public hearing, if they were made a part of the record of any case before OAH, they would be part of the public record of the case. The description of the contents of the record, contained in Minnesota Rules Part 1415.2900, leads to a reasonable conclusion that an affidavit filed in support of a petition for reassignment of an OAH judge would have been made part of the record. Given the lack of clarity in statute, confusion with respect to the proper classification of the affidavits exists. It is reasonable for OAH to have determined that the affidavits contain private personnel data, pursuant to Section 13.43. (Personnel data are data on individuals collected because the individual is or was an employee of . . . a state agency . . .. ) Compensation judges are employees of OAH. However, pursuant to Section 13.03, subdivision 4 (a), [t]he classification of data in the possession of an agency shall change if it is required to do so to comply with either judicial or administrative rules pertaining to the conduct of legal actions or with a specific statute applicable to the data in the possession of the disseminating or receiving agency. The earlier discussion of the statutes and rules which govern the workers' compensation program appears to have identified the authority for the position that even if the affidavits contain private personnel data, when those affidavits were made part of a record of a hearing at OAH, the classification of those data changed as a result of the hearing process. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Vail is as follows:
Signed: Elaine S. Hansen
Dated: July 27, 1995 |
Litigation
Office of administrative hearings OAH
Traveling data
Workers' compensation
