Facts and Procedural History:

On October 21, 1994, the Commissioner received a request for an opinion from Ms. Anne F. Krisnik, the attorney for Independent School District No. 834, the Stillwater schools, and hereinafter the District. In her request, Ms. Krisnik presented the following information. A complaint was made against an employee of the District by another employee. This complaint alleged gender harassment. An investigation was conducted and the investigator was unable to substantiate that harassment had occurred. The District sent a memo to the employee, who was the subject of the complaint. This memo summarized the results of the investigation, informed the employee that no harassment had been substantiated and discussed some job performance issues. (Ms. Krisnik provided a copy of this memo as part of her request.

Subsequently, the employee who had made the original complaint asked the District for disciplinary documents relating to the complaint, specific reasons for the District's action and any supporting documentation. Ms. Krisnik then asked that the Commissioner review the memo described above and determine whether it may be released to the complainant.

Issue:

Discussion:

In its treatment of personnel data about employees, the legislature has specifically identified data about public employees that will always be public. In instances of complaints or charges made against public employees, the legislature has said that the following are public data: the existence and status of any complaints or charges, whether or not the complaint or charge resulted in a disciplinary action; the final disposition of any disciplinary actions together with the specific reasons for the action and data documenting the basis of the action. (See Minnesota Statutes Section 13.43, subdivision 2.)

In all situations in which complaints or charges against an employee are made, the fact of a complaint or charge, the status of the employing government entity's handling of that complaint or charge including whether or not the entity decided to impose a disciplinary action are always public data. In those instances where the government entity has determined to impose a disciplinary action and that disciplinary action has become final then the additional data listed, as described above, in Section 13.43 will also become public data.

In this particular instance, the District determined, after an investigation of the complaint, that no disciplinary action would be taken against the employee. There is no language in the memo sent to the employee that states that the District is taking any punitive actions against the employee. There is language discussing the employee's performance but these are comments directed at improving an employee's performance and indicate no immediate disciplinary intent.

Given that no disciplinary action was taken against this employee, Section 13.43 directs that the following data about the complaint made against this employee are public: the fact that a complaint was made; the fact that the District investigated the complaint; and the fact that the District determined that no disciplinary action would be taken. For purposes of a request for access to data about the employee, the person who originally complained about this employee has the same status as any other member of the public. The complainant is entitled to gain access to the public data about this complaint as previously described. Data that describe the District's specific reasons for determining not to take disciplinary action and any detailed documentation that supports that determination are private data about the employee complained about and are not available to the public.

Ms. Krisnik also asked the Commissioner to examine the memo sent to the employee about whom the complaint was made to determine the status of the data in that memo. The memo does contain the employee's name, the fact that a complaint was made against the employee, the fact that an investigation was conducted and that no disciplinary action would be taken. Those items of data are public as outlined in Minnesota Statutes Section 13.43, subdivision 2. The other data contained in this memo deal with job performance issues. Those data are private data. Performance related data are not made public by Section 13.43, subdivision 2, and are private under the provisions of Section 13.43, subdivision 4.

Opinion: