This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Anthony Acosta requested an advisory opinion about the classification of data that Independent School District 2860 – Blue Earth Area Schools (the District), maintains.

Michelle Kenney, attorney for the District, submitted comments on its behalf.

On January 20, 2017, Mr. Acosta submitted the following data request to the District:

I am requesting to inspect the following data about [a former teacher] from May 16, 2016 to June 30, 2016:

Data classified as public pursuant to Minnesota Statutes, section 13.43, subd. 2(a)(8): “payroll time sheets or other comparable data that are only used to account for employee’s work time for payroll purposes.”

The District responded: “The data you requested is either not maintained by the School District or is classified as private personnel data under Minnesota Statutes, section 13.43 and is not accessible to you.” 

The District provided additional information about its interaction with Mr. Acosta. On September 30, 2016, Mr. Acosta wrote an email to the District. Quoting that letter, the District responded:

I asked Superintendent Evan Gough to comment on whether [the teacher] was allowed to teach following a May 15 incident in which he was charged with domestic assault or was he placed on paid leave.” 

The data you request is classified as private personnel data under Minnesota Statues Section 13.43 and therefore the data you request is not accessible to you.

Gough says the district was aware of a complaint and was conducting an investigation. He insists on not saying whether the complain [sic] is the same as the court case or a written complaint was filed with the district.

Dr. Gough correctly provided you with the “existence and status of any complaints or charges under Minnesota Statutes Section 13.43, subd. 2(a)(4). The further data you request is classified as private personnel data under Minnesota Statutes Section 13.43,which is not accessible to you. [Reformatted.]

In that email, Mr. Acosta also wrote, “I could go check time cards and try to figure out whether [the teacher] was put on leave or not, but I shouldn’t have to.”

Issues:

Based on the opinion request, the Commissioner agreed to address the following issues:

Pursuant to Minnesota Statutes, Chapter 13 (the Data Practices Act), did Independent School District 2860, Blue Earth Area Schools, respond appropriately to a request for the payroll timesheet data of a former employee, classified by Minnesota Statutes, section 13.43?

Discussion:

Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. 
The existence and status of a complaint against an employee are always public. Unless there is a final disposition of disciplinary action, the subject and the nature of the complaint are private. (Section 13.43, subdivision 2(a)(4).)

Additionally, section 13.43, subdivision 2(a)(8) (“clause 8”), provides:

Payroll time sheets, or other comparable data used only to account for an employee's work time for payroll purposes, are public except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data.

In comments to the Commissioner, the District wrote:

An employee’s payroll status during the period of time that a complaint has been received and an investigation is pending cannot be viewed as anything other than private data.
…
When responding to Mr. Acosta’s request, the School District understood that Mr. Acosta, as well as the community at-large because of Mr. Acosta’s reporting, had knowledge that [the teacher] was arrested on May 26, 2016[,] and was subsequently charged with misdemeanor domestic assault… Mr. Acosta’s request for payroll data regarding [the teacher] was for the same period of time (from May 16, 2016, the day of his arrest through the end of the school year). Thus, the School District’s response to Mr. Acosta’s request would disclose [the teacher’s] payroll information during a period of time in which the School District had knowledge of a complaint and an investigation was pending.

The District cited several advisory opinions in support of its argument (See, Advisory Opinions 04-047, 07-004, and 08-005.) Those opinions discuss how the context of a request for public data might impact access to the data.

In Advisory Opinion 07-004, a public data requester asked for the names of employees in internal email communications about the employees’ performance. The Commissioner said that while names of government employees are public, providing access to the names in the context of comments about their work performance would impermissibly reveal private data. In that situation, the names have not been “reclassified” as private, rather the access impermissibly reveals private data.

Advisory Opinion 04-047 seems to refute the District’s position that timesheet data are inaccessible just by virtue of the existence of a contemporaneous complaint:

The Commissioner also wishes to comment on the use of the terms "on leave with pay" and "on leave without pay" in connection with a response to a data request about the status of a complaint/charge made against an employee. Because leave with or without pay may be a form of discipline, it should not be released by the entity when the entity is responding to data requests relating to the status of a complaint/charge against an employee.

The Commissioner acknowledges that a data requestor will be able to determine whether a government entity is or is not paying an employee. Section 13.43, subdivision 2(a)(8), states that "...payroll time sheets or other comparable data that are only used to account for" an employee's work time for payroll purposes are public.” In responding to requests for payroll time sheet data, however, the entity would not be disclosing that any paid or unpaid leave an employee takes is related to a complaint or charge. Further, the entity would be disclosing only data relating to an employee's past or current pay standing, not data about the employee's future pay standing. [Emphasis added.]

Additionally, the Minnesota Supreme Court has also considered a situation where a school district disclosed that a teacher under investigation was on “medical leave.” While the Court did not squarely address the contextual issue under consideration here, it found the disclosure to be a permissible disclosure of public data, even though the District had also disclosed that a complaint existed at the same time as the leave. (See, Navarre v. South Washington County Schools, 652 NW 2d 9, 22 (Minn. 2002).) Thus, contrary to the District’s assertion, the existence of a pending complaint does not itself affect the classification of timesheet data.

Here, the teacher’s complaint at the District did not result in the final disposition of disciplinary action, so the nature and character of that complaint remains private. The data requester had knowledge of public information from the court record. His admitted goal was to determine whether the subject of the court case was related to the complaint at the school and whether either had a bearing on the work schedule/payment of the teacher. However, when asked directly, the District repeatedly – and appropriately – declined to connect any existing complaints against the teacher with the subject of the court case. Consequently, Mr. Acosta was unable to link the subject of the court case directly to the subject of the complaint at the District. Thus, had the District simply provided Mr. Acosta access to public timesheet data, it would not have been impermissibly disclosing private complaint data.

The Commissioner has a final note. The practical result of the District maintaining timesheet data as private complaint data is that when a complaint does not result in discipline, those timesheet data seemingly remain “private” in perpetuity. The plain language of the statute resists such an interpretation. Consider other public elements in 13.43, subd. 2 – dates of employment, terms and conditions of the employment relationship, expense reimbursement, etc. When these elements are requested at the same time as a request for public complaint data, the fact that a complaint exists does not mean that those public elements become private or reveal private data, even if an entity is using them in an active investigation. As Advisory Opinion 04-047 discusses, what would be inappropriate is if an entity responded to a request for data about a pending complaint by providing one of the other public data elements that revealed something about the nature of the complaint.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:

Independent School District 2860, Blue Earth Area Schools, did not respond appropriately to a request for the payroll timesheet data of a former employee, classified by Minnesota Statutes, section 13.43.

Signed:

Matthew Massman
Commissioner

Dated: March 22, 2017