Issue:

In her request for an opinion, J asked the Commissioner to address the following issue:

Discussion:

Regarding the issue of whether the University's responses to J were timely, according to Minnesota Statutes Section 13.04, subdivision 3, a government entity must respond to a request for access to data by the individual subject of the data within five working days. If the government entity needs more time to provide the data, it may take up to an additional five working days, upon notice to the requestor. The University responded 17 working days after the date of J's request. Given that J's letter is dated June 10, 1997, and the University's response is dated July 3, 1997, it appears unlikely that the University met the statutory requirement for a timely response.

With regard to J's July 23 request, in which s/he asked for all data documenting the basis of the disciplinary action, including the names of complainants, the University responded in a letter dated August 20, 1997, twenty working days later, by directing J elsewhere for access to the data. Again, it appears that the University did not meet its statutory obligation to respond to J within five working days.

As to the substance of the University's responses to J's requests, in the letter dated June 10, 1997, J requested access to any and all complaints against me. Ms. McKinney responded by providing copies of all complaints against you that have resulted in actions. The University has not produced data that is private data on individuals under the Minnesota Government Data Practices Act. That response is insufficient in several respects.

Ms. McKinney responded to J by saying that she had enclosed copies of all complaints that resulted in actions. In her comments on J's opinion request, Ms. Smith states that in fact, J was provided with copies of all complaints. However, there was no way for J to know s/he had received everything, given the wording of Ms. McKinney's letter.

Further, Ms. McKinney told J that some of the data related to the complaints were private, and therefore not available to J. Ms. McKinney did not specify the data to which she was denying access, i.e., the names of complainants, and she did not cite the statutory basis for her denial.

Data about government employees are classified according to Section 13.43, which provides that certain specific personnel data are public, and all other personnel data are private. The data in the complaints about J are private data, unless there is a final disposition of disciplinary action against J, at which point some of the data become public. (See Section 13.43, subdivision 2 (5).) Data subjects have the right to gain access to private data about themselves, but not to gain access to private data about someone else without that individual's consent. In the situation at hand, some of J's fellow University employees made complaints involving allegations of harassment against J, which resulted in J's suspension. The problem in a situation like this has to do with the specific content of the complaint data. When one employee complains about another employee, the associated data may be about both employees.

When an employee wants to know who complained about her/him, especially when the complainant is another employee, the process ought to be fairly simple. The supervisor, in order to handle the situation, decides in a particular circumstance whether the complained-about employee needs that information. (See Section 13.05, subdivision 3, and Minnesota Rules Part 1205.0400, subpart 2.) A supervisor may decide not to identify the complainant, particularly in a situation in which the complainant asks not to be identified. In those cases, it is reasonable to treat the data on the complainant as private under Section 13.43. (See Commissioner's Advisory Opinions 96-002, 97-018 and 97-030.)

However, in one specific situation, the Legislature provided additional safeguards because of the nature of the complaint being made. In cases of allegations of sexual or other kinds of harassment, Section 13.43, subdivision 8, governs access to data on the complainant.

Section 13.43, subdivision 8, provides:

When allegations of sexual or other types of harassment are made against an employee, the employee does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee's access to that data would:

1. threaten the personal safety of the complainant or a witness; or

2. subject the complainant or witness to harassment.

If a disciplinary proceedingis initiated against the employee, data on the complainant or witness shall be available to the employee as may be necessary for the employee to prepare for the proceeding.

As the Commissioner opined in Advisory Opinion 94-018:

The Section 13.43, subdivision 8 amendment was not intended to be new and independent authority for the dissemination of identifying data on complainants and witnesses to public employees in situations involving allegations of sexual or other kinds of harassment. It was intended to deal only with those situations where a responsible authority determines, based on safety or further harassment concerns, that an employee is not entitled to gain access to identifying data about complainants or witnesses. It was also intended, in those situations where a responsible authority determines to withhold access to witness and complainant identifying data, to give the employee the means to gain access to the data if a disciplinary proceeding is initiated and the employee needs the identifying data to prepare for the proceeding.

In the particular situation of attempts by Ms. Clark's client to gain access to data involving the accusations against him, there does not appear to have been a determination by the responsible authority for District 272 that the employee's access to data about the student complainants would threaten the safety of those complainants or subject them to further harassment. Without that determination by the responsible authority for District 272, the discussion about access by the employee to data about complainants is not a discussion that is guided by the provisions of Minnesota Statutes Section 13.43, subdivision 8. It is a discussion based on the whether the employee is entitled to access to this data under the District's collective bargaining agreements with its employees or as may be required to protect the due process interests of the employee.

The Commissioner does not know whether Ms. McKinney, as responsible authority for the University, made the determination required under Section 13.43, subdivision 8, to withhold the identities of the complainants from J. If Ms. McKinney made that determination, then J shall have access to the complainants' names as may be necessary to prepare for the disciplinary proceeding. Whether or not J should get access to the names is not an issue in front of the Commissioner. Apparently, at the University, determinations about whether or not employees are entitled to gain access to complainants' names, when the underlying allegations against the employee are some kind of harassment, are made within the framework of the collective bargaining agreement. If this is that kind of instance, Ms. McKinney properly directed J to seek access to the data through the grievance process. In fact, even if Ms. McKinney did not make the Section 13.43, subdivision 8, determination, J may still be able to gain access to the names of the complainants through the grievance process.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by J is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: February 25, 1998