August 17, 1999; Duluth Housing and Redevelopment Authority
8/17/1999 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 IPA and, except for any data classified as not public, are available for public access. On June 29, 1999, IPA received a letter from Dale Lucas, an attorney, on behalf of a client, G. In his letter, Mr. Lucas asked the Commissioner to issue an opinion regarding G's rights to gain access to certain data maintained by the Housing and Redevelopment Authority of Duluth (DHRA.) Mr. Lucas enclosed copies of related correspondence. In response to Mr. Lucas's request, IPA, on behalf of the Commissioner, wrote to Richard W. Ball, Executive Director of DHRA. The purposes of this letter, dated June 30, 1999, were to inform him of Mr. Lucas's request, and to ask him to provide information or support for DHRA's position. On August 11, 1999, IPA received a response from Bryan N. Anderson, attorney for DHRA. A summary of the detailed facts of this matter follows. G requested access to a copy of a report known as the Dave Martin Report. DHRA initially denied access to the Report. In a letter dated February 25, 1999, Mr. Lucas requested access to the Report on G's behalf. In a letter dated March 19, 1999, Mr. Anderson wrote to Mr. Lucas, stating that portions of the Report are not public, pursuant to Minnesota Statutes, section 13.43, which classifies data about public employees. Mr. Anderson wrote: [DHRA] would be willing to prepare a summary of the report or to deliver portions of the report after expunging private data, both as contemplated under 13.05, Subdivision 7, at [G's] expense, we would guess that such a project would take at least one hour and would be chargeable at $85.00 per hour. In a letter dated April 19, 1999, Mr. Lucas replied to Mr. Anderson, and cited the provision of section 13.03 that states that government entities may not charge for separating public from not public data. Mr. Lucas stated that he was renewing his request for access to the Report. Mr. Lucas wrote to Mr. Anderson again, in a letter dated June 4, 1999, in which he stated that he had not received a response to his letter of April 19, and repeated his request. In a letter dated June 25, 1999, which Mr. Lucas received after he submitted his opinion request, Mr. Anderson reiterated that the data requested were not public, and offered to prepare a summary, pursuant to section 13.05, subdivision 7. Mr. Anderson wrote to Mr. Lucas that section 13.03 is not applicable to the data and stated: [DHRA] is neither obligated nor willing to go through the exercise of editing non-public documentary data at its own expense. In his response to the Commissioner, Mr. Anderson stated that a consultant was retained to meet with the staff of [DHRA] in candid, purportedly confidential sessions to discuss organizational issues. . . . From his meetings, he compiled notes and made a summary presentation to the Authority's Board of Commissioners. Mr. Anderson stated that certain of the data the consultant compiled are clearly public; however, Mr. Anderson also wrote: a significant amount of the data is such that specifically, in context, allows identification of the subject of the data . . . . which is not allowable under section 13.43. Issue:In his request for an opinion, Mr. Lucas asked the Commissioner to address the following issue:
Discussion:According to Mr. Anderson, the data constituting the so-called Dave Martin Report are data compiled by a consultant, Mr. Martin, about the operations of the Duluth Housing and Redevelopment Authority, which may include data that identify DHRA employees. Pursuant to Minnesota Statutes, section 13.43, subdivisions 2 and 4, certain data about public employees are public, and all other personnel data are private. In his comments to the Commissioner, Mr. Anderson stated that some of the data in question are clearly public, and some of the data are private. Under the requirements of Chapter 13, the Minnesota Government Data Practices Act, government entities are required, upon request, to make public data available. The Commissioner discussed an issue very similar to the one presented here in Advisory Opinion 98-002. In that case, Clay County hired a consultant to assist with conflict resolution and personnel management issues in the County Attorney's office. After conducting interviews with the County Attorney and his staff, the consultant prepared a report. According to Advisory Opinion 98-002: Upon review of the consultant's report, it is evident that it contains both public and private data. Some of the data in the report are not data on individuals (see Section 13.02, subdivision 5.) For example, the consultant's description of her methodology, and list of interview questions, are not data that identify an individual. The Commissioner is unaware of any provision of state or federal law that would classify those data as nonpublic; therefore, the data are public (see Section 13.03, subdivision 1.) Some of the data in the report are in the form of observations and comments about the operation of the County Attorney's office, from which an individual employee may or may not be identified. To the extent that those data do not or could not identify an individual employee, those data are also public. . . . . The balance of the data in the report appear to be private personnel data. For example, most of the data constitute comments about the County Attorney. Those data are not the type of data classified as public under Section 13.43, subdivision 2. An exception would be if any of the data reflected complaints or charges against an employee, or are data documenting the basis of final disciplinary action taken against an employee. The last page of the report is the County Attorney's office Proposed Action Plan. That page contains data about specific employees and general statements or descriptions of the operation of the office. To the extent that the data are performance-related data about an employee - for example, numbers 1 and 2 in the first section of the plan - the data are private. To the extent the data describe the general operation of the office - for example, number 3 in the first section - those data are not personnel data and are therefore public. In this case, the Commissioner was not provided with a copy of the data at issue here. However, the same reasoning applies: data that identify, or could identify, a DHRA employee, that are not of the type listed in section 13.43, subdivision 2, are private data. All other data appear to be public, and must be made available to Mr. Lucas. Further, Mr. Lucas made clear that he was requesting access to the public data associated with Mr. Martin's review of DHRA, not summary data (see section 13.05, subdivision 7), as Mr. Anderson proposed. The Commissioner acknowledges that redaction of private data in a case like this may be difficult. Nonetheless, it is DHRA's responsibility to do so, and, according to section 13.03, subdivision 3, it . . . may not charge [Mr. Lucas] for separating public from not public data. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Lucas is as follows:
Signed: David F. Fisher
Dated: August 17, 1999 |
