Issue:

In his request for an opinion, Mr. Sample asked the Commissioner to address the following issue:

Discussion:

Data on individuals about current and former government employees are classified pursuant to Minnesota Statutes, section 13.43, which provides a listing of the public types of personnel data and classifies most other personnel data as private. Private data are not public but are accessible to the data subject and those individuals within the government entity whose work assignments reasonably require that they gain access to the data. (See section 13.02, subdivision 12, and Minnesota Rules section 1205.0400.)

Pursuant to subdivision 2 (a) of section 13.43, the following personnel data are public:

(4) the existence and status of any complaints or charges against the employee; regardless of whether the complaint or charge resulted in a disciplinary action;

(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body;

In addition, section 13.43, subdivision 2 (b) provides:

For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator.

Accordingly, the classification of data relating to the final outcome of complaints or charges against a public employee depends upon whether a final disposition of any disciplinary action has occurred. If there has been no final disposition of a disciplinary action, only limited data regarding the incident are public, i.e., whether a complaint or charge exists, and the status of any such complaint or charge. If there has been a final disposition, additional data become public.

In the case of this opinion, the Library System did not take disciplinary action against its employee. Mr. Sample wrote:

At the conclusion of that investigation, the independent investigative agency provided a report to the System describing the facts identified during the investigation but without any conclusions regarding the merits of the claim or recommendations regarding any discipline or corrective action that might be appropriate....It has been determined that there will be no discipline as a result of the allegations made by the complaining employee.

Therefore, because the Library System will not be taking disciplinary action, the fact that a complaint was made against the employee and the status of that complaint are public; any of the remaining data in question that are about government employees are classified as private.

Upon examination of the investigative report and related notes, it appears they contain data about multiple data subjects. Thus, to respond appropriately to the data request, the Library System is obligated to 1) provide that employee with access to the data about him/her and 2) not release private data about any other employees. For more guidance regarding separating information about multiple data subjects, see Advisory Opinions 93-010, 96-002, 97-010, and 97-018.

One additional note regards section 13.43, subdivision 8, harassment data. Mr. Sample stated that the complaint was one of harassment. Subdivision 8 states:

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 proceeding is 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.

If the Library System's responsible authority determines that the release of identifying data about the complainant and/or witnesses would subject the complainant or other witnesses to harassment or threaten personal safety, the Library System is obligated to protect that information. However, given the facts of this particular situation, the Library System may reasonably conclude that the data protected by subdivision 8 are data about other employees and are not accessible to the complainant because they are private pursuant to section 13.43, subdivision 2.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: June 1, 1999