Discussion:

Pursuant to Section 13.43, subdivision 2(a)(5), the following data are public: [t]he 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. Mr. Knutson stated that the disciplinary action is final, within the meaning of Section 13.43, subdivision 2(b), and stated that even though the complaint involved an allegation of harassment, the City has determined that Section 13.43, subdivision 8, does not provide a basis to deny the subject of the complaint access to the data. Therefore, pursuant to Section 13.43, subdivision 2(a)(5), any data in the complaint that document the basis of the final disciplinary action are public, and are accessible to members of the public, as well as the disciplined employee.

In addition, if the complaint contains data that do not document the basis of the final disciplinary action, those data are private personnel data about the complainant, the disciplined employee, or both. (See Section 13.43, subdivision 4.) Therefore, the disciplined employee may also gain access to any data in the complaint of which s/he is the subject.

There is, however, a potential complication with this result. The City may have been required, under Section 13.04, subdivision 2, to give the complainant the notice commonly referred to as a Tennessen Warning. According to Section 13.04, subdivision 2, when an individual is asked by a government entity to provide private or confidential data about him/herself, the entity must inform the individual of the following: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data.

Mr. Knutson stated that, pursuant to a 1997 Minnesota Court of Appeals case, Edina Education Association, et al, v. Board of Education of Independent School District 273 (Edina), et al, a Tennessen Warning was not required. The Commissioner respectfully disagrees with Mr. Knutson's reading of the case.

In that case, the Court held that when the District interviewed a school psychologist, the circumstances of the investigation did not require a Tennessen Warning. The court wrote, [the District] was attempting to gather factual information about an incident within the course and scope of [the psychologist's] employment. As such, the data may have been government data, but it was not data on an employee as an individual. . . . To the degree that the data identified [the psychologist], it was incidental to the factual focus of the inquiry.

The Court of Appeals concluded that a Tennessen Warning was not required because the individual raising the issue had not been asked to provide data about herself. In contrast, the New Market complainant provided data about her/himself, as well as data about the other employee. The complainant voluntarily approached the Mayor, who then suggested that the complaint be made in writing. Based on that description of events, the Commissioner cannot determine whether the City asked the complainant to supply data, thus triggering the Tennessen Warning requirement. If s/he was asked to supply private or confidential data about her/himself, then a Tennessen Warning must be provided. If a Tennessen Warning was required, and not provided, then, pursuant to Section 13.05, subdivision 4, any private data in the complaint, about the complainant, cannot be disseminated for any purpose. (For further discussion of this issue, see also Advisory Opinion 96-028.)

The fact that the complainant asked for confidentiality has no bearing on the classification of the data, regardless of whether a Tennessen Warning was required. However, it underscores the difficulty that can result when a government entity fails to provide a proper Tennessen Warning. The complainant was not made aware, before providing the data to the City, of the identities of others, i.e., the public, who might gain access to the data. The purpose of the Tennessen Warning requirement is to ensure that individuals are able to make informed choices about supplying data about themselves to the government. If an individual is not notified that certain data s/he is asked to supply may become public, the person cannot make an informed choice. Therefore, in those situations where a government entity reasonably expects that the private or confidential data will, at some future point, become public, the individual should be informed of that eventuality.

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: September 18, 1998