September 4, 2001; Minnesota Department of Natural Resources
9/4/2001 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 government entity that requested this opinion are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data that are not public, are available for public access. On June 21, 2001, IPA received a letter from Major William Everett, Division of Enforcement, Minnesota Department of Natural Resources (DNR). In his letter, Major Everett asked the Commissioner to issue an opinion regarding the classification of certain data that the DNR maintains. At the request of IPA staff, Major Everett submitted additional information and clarification, the last of which he submitted on July 9, 2001. Anthony Cornish, President, Minnesota Conservation Officers Association, submitted comments to the Commissioner on July 17, 2001. A summary of the facts is as follows. Major Everett wrote: The issue involves the classification of data about Minnesota State Conservation Officers (peace officers) who are assigned intermittently to undercover duties in addition to their regular assignments as community law enforcement officers. The Division of Enforcement acknowledges that data relating to these officers - in their undercover capacity - is classified as private pursuant to Minn. Stat. section 13.43, subd. 5. Our question is whether these intermittent undercover assignments shroud all data about these officers, even data relating to arrests and other actions taken as part of regular uniformed patrol activities, in subdivision 5's cloak of privacy. Major Everett described the organization of the Division of Enforcement: The Division of Enforcement is organized into various operational and support sections. One of those sections is the Special Investigations Unit, or SIU. SIU is staffed with three full-time officers, all three of whom work extensively in an undercover capacity, posing as customers of illicit services. The staffing of SIU is augmented by the intermittent participation of regular, uniformed conservation officers. These are officers who, for the overwhelming majority of their working hours, conduct uniformed patrol operations and function as very visible members of their communities. Their duties include not only uniformed patrol, but also include appearing in uniform within their patrol areas to give informational presentations to community groups and safety classes. They also appear on camera as part of television stories, give interviews and pose for photographs as part of newspaper and magazine articles, and do radio spots with conservation and safety messages. However, at times, these officers are asked to work in an undercover capacity. They perform these undercover duties almost exclusively in areas away from their home duty stations. When working undercover, they are provided with false identities, credentials, and identification. As part of the Division's efforts to keep our customers informed, newsworthy events are compiled every week into a document which has become known as the Monday Morning Report. Every officer assigned to a field station is required to submit a summary of newsworthy events for this report. The Division, in turn, compiles these individual reports and provides media outlets, members of the legislature, and other stakeholders with copies. The reports are organized by officer, with a summary of newsworthy events following his or her name. Data about the officers, as it relates to undercover activities, is not reported. Major Everett provided to the Commissioner a copy of a Monday Morning Report. Issue:In his request for an opinion, Major Everett asked the Commissioner to address the following issue:
Discussion:Data on individuals collected because the individual is or was an employee of a government entity are classified pursuant to Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 provides the types of employee data that are public and subdivision 4 classifies most other types of employee data as private. Subdivision 5 of section 13.43 specifically classifies data about undercover law enforcement officers: All personnel data maintained by any [government entity] relating to an individual employed as or an applicant for employment as an undercover law enforcement officer are private data on individuals. When the individual is no longer assigned to an undercover position, the data described in subdivisions 2 and 3 become public unless the law enforcement agency determines that revealing the data would threaten the personal safety of the officer or jeopardize an active investigation. In his comments to the Commissioner, Mr. Cornish wrote: By the Conservation Officers' nature, they travel all over the state in their regular capacity. They run the risk of running into the same subjects that they have worked on while traveling on their regular assignment. They receive training on what to do if that unfortunate circumstance would happen. It is the MCOA's position that this statute should be interpreted in a very restrictive manner. It does not make sense to be liberal with the definition of what is no longer assigned to an undercover position means. We firmly believe that they are still assigned. The only way that they are not assigned would be if they got fired or moved formally out of that position to something else, not to return. Although Mr. Cornish raises some valid concerns, based on the language of section 13.43, subdivision 5, the Commissioner must respectfully disagree. Section 13.43, subdivision 5, states that when an individual is working as an undercover law enforcement officer, all personnel data about that individual are private. It further provides that when the individual is no longer assigned to the undercover position, certain personnel data become public, unless the employing entity determines that revealing the data would threaten the personal safety of the officer or jeopardize an active investigation. Thus, before an agency publicly reveals data that were previously classified as private, the agency must determine that revealing those data would not threaten the safety of the officer or jeopardize an active investigation. If the agency determines that revealing the data would threaten the safety of the officer or jeopardize an active investigation, the agency must continue to treat the data as private. In the case of this opinion, Major Everett has described a situation in which DNR moves officers on and off of undercover assignments. Pursuant to section 13.43, subdivision 5, when the officers are working undercover assignments, all personnel data about them are private. However, when those same officers are rotated back to their regular assignments as community law enforcement officers, the data about them listed as public in subdivisions 2 and 3, e.g., name, actual gross salary, work location, work telephone number, etc., are public, unless the DNR determines that revealing the data would threaten the personal safety of the officer or jeopardize an active investigation. Opinion:Based on the facts and information provided, my opinion on the issue that Major Everett raised is as follows:
Signed:
David F. Fisher
Dated: September 4, 2001 |
Law enforcement data
Personnel data
Undercover officers
Law enforcement
