Facts and Procedural History:

On August 7, 2019, the Data Practices Office received an advisory opinion request from Sarah Sonsalla, City Attorney for the City of Shakopee (City). In her letter, Ms. Sonsalla asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the City maintains pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act). Attorneys for Independent School District 720, Shakopee Schools (District), Stephen M. Knutson and Minhquang Trang provided comments on behalf of the District. Rachel Minske, Regional Editor for the Shakopee Valley News submitted comments on behalf of the paper.

The City provided the following information to the Commissioner.

The City received a data practices request from the Shakopee Valley News for a copy of the "NeuVest Report." The NeuVest Report is a report that Independent School District No. 720 (the "District") had initiated with respect to its employment investigation of Rodney Thompson, a former employee of the District. Mr. Thompson is no longer employed by the District. He resigned from his position and no discipline was imposed on him by the District. The District maintains that the NeuVest Report is private personnel data pursuant to Minnesota Statutes Section 13.43.

The City, in conjunction with the Federal Bureau of Investigations, also criminally investigated Mr. Thompson with respect to incidents that occurred during the course of his employment with the District. Mr. Thompson pled guilty to federal and state criminal charges and was sentenced to prison. Therefore, the criminal investigation is no longer active.

In the course of the City's criminal investigation of Mr. Thompson, the City's Police Department obtained an unredacted copy of the NeuVest Report from the District through the means of a search warrant. The NeuVest Report is being maintained by the City as criminal investigative data pursuant to Minnesota Statutes Section 13.82, subdivision 7 as it was received by the City as part of its criminal investigation of Mr. Thompson. Because the criminal investigation of Mr. Thompson is no longer active under Minnesota Statutes Section 13.82, subdivision 7, it is the City's opinion that the Neu Vest Report is now public pursuant to this statute. Since the Shakopee Valley News' data practices request for a copy of the report was made to the City, the City must provide the report.

The City and the District disagree with respect to whether or not the NeuVest Report is public when it is in the hands of the City. 

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Issue:

Based on the opinion request, the Commissioner agreed to address the following issue: What is the classification of data in a report that the Shakopee Police Department collected from Independent School District 720, Shakopee Public Schools, as part of a criminal investigation, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?

Discussion:

Government data are, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (See Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)

Data that law enforcement collects, creates, and maintains are classified by Minnesota Statutes, section 13.82. While an investigation is active, subdivision 7 classifies data not listed in subdivisions 2, 3, and 6, as confidential or protected nonpublic. Once an investigation becomes inactive, much of the investigative data classified by subd. 7, become public. Data are inactive investigative data when 1) law enforcement agency or a prosecutorial authority declines to pursue the case; 2) when the statute of limitations has run for a particular offense; or 3) when a defendant has exhausted appeal rights. 

Data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivisions 2 and 3 list the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.  

Data that move from one government entity to another are commonly referred to as “traveling data.” Minnesota Statutes, section 13.03, subdivision 4 provides, in relevant part:

(a) The classification of a government entity's data shall change if it is required to do so to comply with either judicial or administrative rules pertaining to the conduct of legal actions or with a specific statute applicable to the data in the possession of the disseminating or receiving entity. 

(b) …

(c) To the extent that government data are disseminated to a government entity by another government entity, the data disseminated shall have the same classification at the entity receiving them as they had at the entity providing them. [Emphasis added.]

The Commissioner has considered traveling data in prior opinions. (See Advisory Opinions 96-041, 98-031, 00-004.) In Advisory Opinion 97-023, she wrote:

In the current situation, data traveled from the Medical Examiner to the Police Department. Once those data were received by the Police Department, the data became subject to the classification specified for law enforcement data in Section 13.82. Because Section 13.82, subdivision 5, states clearly that inactive law enforcement investigative data are public, the classification of the Medical Examiner data received by the Police Department are public. [Note: the legislature renumbered section 13.82, subd. 5 as section 13.82, subd. 7.]

Here, the District relied on Advisory Opinion 19-005 and section 13.03, subd. 4(c), for its argument that data classified as private personnel data at the District remain private at the City. Advisory Opinion 19-005 considered various statutes that classify law enforcement data during and after an investigation. It did not, however, address the issue of data classified by one statute at an entity (here, section 13.43, District personnel data) “traveling” to another entity and changing classifications (here, section 13.82, City law enforcement data). As such, section 13.03, subd. 4, did not apply to the data at issue in that opinion.

By contrast, section 13.03, subd. 4(a), clearly applies to the circumstances here. Regardless of the classification of the data at the District, once the City received the report, the classification changed because of the specific statute applicable to data in the possession of the receiving entity. Therefore, when the City collected the report from the District, pursuant to section 13.82, the data in the report became confidential/protected nonpublic active criminal investigative data. Once the data became inactive criminal investigative data, the data in the report became public at the City (except for any data in the report that would otherwise be classified as not public classified by section 13.82).

The Commissioner notes that the classification of the data at the City did not affect the classification of the data at the District at any time during the investigation.

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Opinion:

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

The data in the NeuVest report maintained by the Shakopee Police Department as inactive investigative data are public, pursuant to Minnesota Statutes, section 13.82, regardless of the classification of the data as maintained by the Shakopee Schools.

Signed:

Alice Roberts-Davis
Commissioner

September 16, 2019