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Advisory Opinion 96-044

October 23, 1996; Minnesota Department of Labor and Industry

10/23/1996 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On August 29, 1996, PIPA received a letter requesting this opinion from John B. Lennes, an attorney representing Builders Staff Corporation. In that letter, Mr. Lennes described his client's attempts to gain access to certain data maintained by the Minnesota Department of Labor and Industry ( DOLI ). Mr. Lennes enclosed copies of related correspondence. PIPA staff contacted Mr. Lennes for clarification and additional information, which PIPA received on September 5, 1996.

In response to Mr. Lennes's request, PIPA, on behalf of the Commissioner, wrote to Gary Bastian, Commissioner of DOLI. The purposes of this letter, dated September 12, 1996, were to inform Mr. Bastian of Mr. Lennes's request, to ask him or the Department's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On September 27, 1996, PIPA received a response from Mr. Bastian. A summary of the detailed facts of this matter follows.

Builders Staff Corporation has applied to DOLI for approval of a collective bargaining agreement, pursuant to Minnesota Statutes Section 176.1812. According to DOLI, as part of the approval process, . . . [DOLI] staff requested and received information from various sources, including the State of California, Department of Industrial Relations. . . .

When Builders Staff learned from DOLI that the Department had information about the company from California, Builders Staff sought to gain access to those data. The company first requested copies of the data at issue in a letter dated October 24, 1995, from Russell P. Ferry, CEO, to Kevin Gregerson of DOLI. According to Mr. Gregerson's affidavit, he did not respond to [Mr. Ferry's] request.

In letters dated July 9, 1996, and August 5, 1996, Mr. Lennes repeated Builders Staff's request for access to the data in question. In a letter dated August 14, 1996, William A. Bierman of DOLI responded to Mr. Lennes. In that letter, Mr. Bierman wrote:

. . . if we had data in the file from the California Department of Labor, that data would be active civil investigative data as defined in Minn. Stat. 13.39. This statute classifies the data as 'protected nonpublic data' with respect to data on entities, such as your client, or 'confidential' with respect to data on individuals. In either case the data is not available to the subject.Civil investigative data is data collected as part of an active investigation undertaken for the purpose of bringing or defending civil legal action, or retained in anticipation of the same. You have been clear in communicating your client's intentions of an action and the conditions when that might occur.

In a letter dated August 22, 1996, Mr. Lennes responded to Mr. Bierman:

The Department in no way, shape or form has engaged in any active investigation undertaken for the purposes of defending a civil legal action, as you suggest. Rather, the Department seems to have engaged in an unauthorized 'active investigation' for reasons which are, and I presume will remain, unstated. This 'active investigation' predated Builders Staff's contemplation of litigation, and ironically is itself the basis for the company's feeling that a courtroom might be the only place it can turn for justice. [Emphasis his.]

In his opinion request, Mr. Lennes wrote:

[DOLI] has taken the position that [the data in question] is civil investigative data, collected as part of an active investigation undertaken for the purpose of bringing or defending a civil legal action or retained in anticipation of same. This is not the case. This is simply data that was aggregated with respect to a request by Builders Staff for approval of an agreement. The Department seems to have anticipated that its actions could precipitate a lawsuit, and has chosen to treat the acquisition of the data in question in that respect. Please be assured that, unless the Department for some reason is anticipating suing Builders Staff, Builders Staff has no intention of suing the Department unless in the process of considering the application they continue to violate the company's rights.

Issue:
In his request for an opinion, Mr. Lennes asked the Commissioner to address the following issue:

Does Mr. Lennes, on behalf of his client Builders Staff Corporation, have the right to gain access to Minnesota Department of Labor and Industry data provided by the California Department of Industrial Relations that relate to Builders Staff's application for approval of a collective bargaining agreement?

Discussion:

In his response to the Commissioner, Mr. Bastian stated reasons for DOLI's position that the data from California are not accessible to Builders Staff, in addition to the reason cited by Mr. Bierman to Mr. Lennes, i.e. the data are civil investigative data. Mr. Bastian stated:

In California, the data collected by the California Department of Industrial Relations in reviewing alternative workers' compensation programs are confidential and not subject to public disclosure under any California law. California Labor Code section 3201.5(j). . . . . The California Public Records Act, Cal. Gov. Code [Section] 6250 et seq. does not define the term 'confidential' and makes no distinction between data available to the public and that available to individual subjects of the data.

. . . .

With respect to the California data, those data are classified by statute as nonpublic [sic]. The bedrock provision of the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. [Section] 13.03, subd.1, provides:

All government data collected, . . . by a state agency . . . shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic . . .

(emphasis added). Note that the term statute is not qualified by the term Minnesota and therefore does not limit such classifications to those made pursuant to Minnesota law. The statute thereby encompasses classifications made pursuant to the statutes of another state. The legislature's recognition of the classifications established by laws of another jurisdiction is further evidenced by its explicit recognition of classifications pursuant to federal law. Because the California data are classified as confidential and not subject to disclosure under California law, the data are likewise classified as nonpublic under the MGDPA.

The Commissioner respectfully disagrees with DOLI's interpretation of the meaning of statute as it is used in Section 13.03. While the Commissioner acknowledges that statute is not qualified by Minnesota in Section 13.03, she does not agree with DOLI's view that the meaning of that Section, or indeed any provision of Minnesota statute which refers simply to statute, ought to be read to include the statutes and court decisions of any other state.

As Mr. Bastian noted, the Legislature explicitly provided that if a federal law classifies data as not public, that classification controls. However, the Legislature made no such provision in Section 13.03 for any other state's data classification scheme. In a least one case, the Legislature has made a specific provision in statute for the kind of situation that DOLI asserts applies generally.

Pursuant to Section 299L.03, subdivision 11, which governs the Gambling Enforcement Division of the Minnesota Department of Public Safety, provides, in relevant part:

Data provided to the director, by a governmental entity located outside Minnesota for use in an authorized investigation, audit, or background check, has the same data access classification or restrictions on access, for the purposes of chapter 13, that it had in the entity providing it. If the classification or restriction on access in the entity providing the data is less restrictive than the Minnesota classification, the Minnesota classification applies.

There would have been no reason for the Legislature to enact the language of Section 299L.03, subdivision 11, if the DOLI were correct in its interpretation of Section 13.03, subdivision 1, that a statute means the statute of any state in the United States.

Further, Minnesota employs a unique system for classifying government data. Most other states use a foia or freedom of information act approach to data classification, but there is no nationwide standard for classifying data maintained by government entities. If DOLI's interpretation were accepted, it would have the effect in Minnesota of nullifying the classification system of Chapter 13. To accept DOLI's interpretation would mean that the Minnesota Legislature has delegated to any other legislature in the country the authority to determine how data maintained by Minnesota governmental entities are classified. The Commissioner does not agree that the Legislature intended such a result. Therefore, the classification of data maintained by a Minnesota government entity, regardless what the source of the data is, is determined by Minnesota statute or federal law, pursuant to Section 13.03, subdivision 1. The status of the data in question in the originating agency in California is irrelevant.

The Department also argued that the data in question are classified under Section 13.39. Subdivision 1 of Section 13.39 provides: [a] 'pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the state agency, political subdivision or statewide system. (Emphasis added.)

Section 13.39, subdivision 2 (clause a), provides that data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action are classified as protected nonpublic data (data not on individuals) or confidential (data on individuals).

According to a sworn affidavit of Mr. Bierman submitted by DOLI, he is . . . an attorney employed by [DOLI] and [has] been designated the attorney at the Department to respond to requests under the Minnesota Government Data Practices Act. According to the affidavit, Mr. Bierman learned in September of 1995 that the California Department of Labor and Industry had information which he believed to be relevant to Department's review of Builders Staff's application under Section 176.1812. According to Mr. Bierman, I determined at that time, before the California Department supplied any materials, that if this Department would ever utilize the information we thought might come from California to deny the application of Builders Staff in Minnesota, the Department would very likely be sued.

The Commissioner wishes to note that there are three conditions which must be met when a government entity seeks to classify data as not public pursuant to Section 13.39. The first condition is that there must be a pending civil legal action.

The second condition is that the chief attorney acting for the state agency, political subdivision, or statewide system shall determine whether, for purposes of Section 13.39, a civil legal action is pending.

The third condition is that the data must have been collected by the government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action or which are retained in anticipation of a pending civil legal action.

According to the information provided by Mr. Lennes and DOLI, it appears that the data from California were collected by DOLI as part of its process of reviewing Builders Staff's application for approval of a collective bargaining agreement, pursuant to Minnesota Statutes Section 176.1812. It does not appear that Mr. Bierman is the chief attorney acting for DOLI. It does not appear that the data were collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action. Therefore, in order for DOLI to be able to classify the data pursuant to Section 13.39, it appears that the chief attorney acting for the Department must determine that the data are retained in anticipation of a pending civil legal action.

However, there is a 1993 Minnesota Supreme Court case which must be reconciled. In St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), the court held that a notice of claim provided to a political subdivision, had not been collected by the political subdivision in anticipation of possible commencement of litigation and thus, could be disclosed under Chapter 13. The court wrote:

Unfortunately, in our view Minn. Stat. curren;13.39, subd. 2 (1990) does not permit a notice of claim to be classified as a nonpublic document. The statute speaks of 'data collected by * * * political subdivisions.'...'Collect,' then, requires affirmative action by someone, and pursuant to section 13.39, subd. 2, that someone is a political subdivision...The information contained in a notice of claim is indeed retained by a political subdivision in anticipation of the possible commencement of legal action, but is not 'data collected' by the political subdivision as part of an active investigation. The political subdivision has not taken any affirmative action to gather the information contained in a notice of claim; it is simply a passive recipient of that information. [Emphasis added.]

The Commissioner discussed the effect of St. Peter Herald in advisory opinion 95-040:

However, the Commissioner does wish to add that she is somewhat puzzled by the holding in St. Peter Herald. It appears that Section 13.39, subdivision 2, when read in full, could certainly be interpreted to mean that data become not public if a government entity either collects the data as part of an active investigation undertaken for the purpose of the commencement or defense of a pending legal action, or if the government entity retains the data in anticipation of a pending legal action. Thus, the classification of the data would not be dependent, as the St. Peter Herald case suggests, on the method upon which the government entity comes to possess the data. This issue may need legislative clarification.

Regardless of the Commissioner's reluctance to fully accept the conclusion reached in St. Peter Herald, there appears to be no other case law on the issue.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Lennes is as follows:

Given the facts in this case, and the finding in St. Peter Herald, it does not appear that the Minnesota Department of Labor and Industry may deny Builders Staff Corporation access to the data provided by the California Department of Industrial Relations that relate to Builders Staff's application for approval of a collective bargaining agreement. The data are public under Chapter 13 and should be provided to Mr. Lennes.

Signed:

Elaine S. Hansen
Commissioner

Dated: October 23, 1996

Civil investigative data

Litigation

Civil investigative data (13.39)

Other states' laws

Pending legal actions