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February 15, 2000; Minnesota Department of Labor and Industry
2/15/2000 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.
Note: The Minnesota Supreme Court subsequently issued Westrom v. Minnesota Dept. of Labor, 686 NW 2d 27 (Minn. 2004) about the issues raised in this opinion. 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 December 17, 1999, IPA received a letter dated December 15, 1999, from X. In his/her opinion request, X asked the Commissioner to issue an opinion regarding whether the Minnesota Department of Labor and Industry (DOLI) had violated X's rights under Minnesota Statutes, Chapter 13. IPA, on behalf of the Commissioner, wrote to Gretchen Maglich, Commissioner of DOLI, in response to X's request. The purposes of this letter, dated December 17, 1999, were to inform her of X's request and to ask her to provide information or support for DOLI's position. On January 11, 2000, IPA received a response, dated January 7, 2000, from Nancy Leppink, Director of Legal Services. A summary of the facts is as follows. In September 1998, pursuant to Minnesota Statutes, section 176.181, DOLI issued to X an Order to Comply and Penalty Assessment (Order) and an Amended Order to Comply and Penalty Assessment (Amended Order). Section 176.181 requires that most Minnesota employers carry workers' compensation insurance. In her response to the Commissioner, Ms. Leppink wrote: The Order notified [X's company] and the Amended Order notified [another of X's companies] that the Commissioner had determined that they had violated Minn. Stat. section176.181, subd. 2, ordered them to obtain workers compensation insurance and to refrain from employing any person until they had obtained insurance and assessed penalties. Finally, the orders notified [the two companies] of their right to contest the orders. In October 1998, X's attorney filed an Objection to the Order and to the Amended Order. One part of the objection is that X did not direct or control the activities of any employees and should be dismissed as an individual respondent. In his/her opinion request, X wrote that data contained in the Order, the Amended Order, and the Objection to the Amended Order to Comply and Penalty Assessment appeared in press releases dated October 23, 25, and 26, 1998, and subsequent newspaper articles. X stated, I believe that DOLI is responsible for the release of this confidential information. X also asserted that DOLI staff and others had advised him/her that the data in the documents are currently classified as confidential pursuant to Minnesota Statutes, section 13.39, and that an Assistant Minnesota Attorney General had written a letter to X's attorney advising him that the data were protected. IPA staff faxed a copy of this letter to DOLI on December 22, 1999. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are presumed public unless otherwise classified by statute, federal law, or temporary classification (see 13.06). Of relevance to this opinion is section 13.39, which classifies as not public those data collected by government entities as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action. Once the investigation becomes inactive, the data become public upon the occurrence of any of the following: 1) the entity or its chief attorney determine not to pursue the civil action; 2) the statute of limitations expires; or 3) either party exhausts its rights of appeal. In September of 1998, DOLI issued to X the Order and the Amended Order. In October of 1998, X's attorney filed an Objection to the penalty assessed. X asserted that although DOLI had advised him/her that data contained in these documents were not public, some of those same data appeared in press releases dated October 23, 25, and 26 of 1998, and subsequent newspaper articles. In her response to the Commissioner, Ms. Leppink acknowledged that DOLI had released the data. She wrote, [n]o data subjects' rights under [Chapter 13] were violated when [DOLI] released the Order, Amended Order and Objection in response to a data practice request. Ms. Leppink asserted that the data in question are public, and that the data are not the type that can be classified as civil investigative data. She also wrote: [e]ven if [DOLI] had determined that the protections set out in Minn. Stat. section 13.39 should be applied to these documents, it could have utilized its discretion to disclose the documents because it determined disclosure would aid the law enforcement process. Minn. Stat. section 13.39, subd. 2 (1998). Ms. Leppink added, It is the position of the Department that data described in Minn. Stat. section 13.39 does not include Orders to Comply and Penalty Assessments issued by the Department and Objections filed by employers and therefore the protections set out in Minn. Stat. section 13.39 were not asserted. DOLI did not provide a copy of this policy. Although Ms. Leppink, on behalf of DOLI, made very clear legal arguments, she did not inform the Commissioner how and under what circumstances DOLI released to the public the data in question. Instead of stating that DOLI released the data because the investigation was no longer active or because DOLI was exercising its discretionary authority, Ms. Leppink provided legal arguments only as to how the data might have been made public. Also, Ms. Leppink's description of DOLI's position regarding the treatment of the data in question runs contrary to X's actual experience with DOLI staff and one of its attorneys. X wrote that DOLI staff and others had advised him/her that the data were confidential pursuant to section 13.39. In addition, an Assistant Attorney General wrote to X's attorney in April of 1999 regarding DOLI's response to [X's company's] settlement offer. The assistant attorney general wrote: As I understand [Chapter 13], all documents maintained by a state agency during an active investigation or while a matter is pending' is protected nonpublic data' in the case of data not on individuals or confidential' in the case of data on individuals. The statute allows agency discretion, however, to make any data classified as confidential' or protected nonpublic' available to the public if access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.' Minn. Stat. section 13.39, subd. 2. (1998). At this time, I do not foresee invoking that discretion. If you [sic] client's confidentiality is of great concern, you may want to seek a protective order barring the agency from responding to a data practice request. Section 13.39 is intended to operate as a microcosm of the general operation of Chapter 13; it functions as a balance between an individual's right to privacy, the public's right to know, and a government entity's need for confidentiality to protect the integrity of a civil investigation. The interests of each party to a confidential investigation are served as follows. The government entity's investigation is protected by not having to disclose its data to either the subject of the investigation or the public until the law that regulates various civil legal processes dictates release of the data. The individual data subject is protected because data of an unproven nature, which the individual has not been afforded the opportunity to contest in a legal forum, is not public until the process reaches a conclusion. The public interest is protected because much of the data eventually become public. In the case at hand, this careful legislative balancing of interests was upset. The process had not yet reached a conclusion but DOLI still released data about X while his/her appeal was pending. In summation, DOLI created the data in the Order and Amended Order on September 25 and September 24, 1998, respectively. DOLI received the Objection from X's attorney (dated October 1, 1998) on October 6, 1998. According to X, DOLI staff advised him/her that the data contained in the documents were not public pursuant to section 13.39. Someone in DOLI who had access to the data released them sometime prior to October 23 (the date of the first of three press releases containing information from the documents). An attorney for DOLI wrote in a letter dated April 28, 1999, that the data were not public pursuant to section 13.39. Therefore, it is the Commissioner's opinion that DOLI violated X's rights when DOLI released the data. Opinion:Based on the facts and information provided, my opinion on the issue raised by X is as follows:
Signed: David F. Fisher
Dated: February 15, 2000 |
Civil investigative data
Civil investigative data (13.39)
