To return to this list after selecting an opinion, click on the "View entire list" link above the opinion title.
February 15, 2000; Minnesota Office of the Crime Victims Ombudsman
2/15/2000 10:15:43 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.
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 November 30, 1999, IPA received a letter from Laura Goodman-Brown, Crime Victims Ombudsman. In this letter, Ms. Goodman-Brown asked the Commissioner to issue an advisory opinion regarding the classification of the data contained in the Office of Crime Victims Ombudsman Critical Report #9900029. Ms. Goodman-Brown's request required clarification and additional information. In response to Ms. Goodman-Brown's request, IPA, on behalf of the Commissioner, wrote to Peter Ginder, Assistant Minneapolis City Attorney, and Ann E. Walther, an attorney for the Minneapolis Police Federation, and to two of the Minneapolis police officers who were principal subjects of the report. The purposes of these letters, dated December 27, 1999, were to inform them of Ms. Goodman-Brown's request and to ask them to provide comments. In addition, Ms. Walther was invited to comment on behalf of any of the other officers named in the report, or to solicit comments from them. On January 5, 2000, and January 12, 2000, IPA received responses from Mr. Ginder and Ms. Walther. A summary of the facts of this matter follows. The Office of Crime Victims Ombudsman (OCVO) received a complaint concerning the treatment by Minneapolis police officers of a juvenile victim of criminal sexual assault. Pursuant to section 611A.74, subdivisions 2 and 3, the OCVO investigated the complaint and produced a report. The OCVO requested and received a copy of the internal affairs investigative file from the Minneapolis Police Department. In addition, the OCVO collected data from public documents, and conducted its own interviews of Minneapolis police officers. In their responses to the Commissioner, Mr. Ginder and Ms. Walther stated that the data in the Report about Minneapolis police officers are private personnel data, pursuant to section 13.43, as there was no disciplinary action taken against the officers. They stated that it would violate the officers' rights under Chapter 13 if the Report were released to the public in its entirety. Issues:In her request for an opinion, Ms. Goodman-Brown asked the Commissioner to address the following issues:
Discussion:The Report contains data that the OCVO received from Minneapolis, data that the OCVO collected from public sources (i.e., newspaper articles), and data that the OCVO created. Most of the data on individuals the OCVO obtained from Minneapolis are private personnel data, under section 13.43. (See section 13.43, subdivisions 2 and 4.) Section 13.03, subdivision 4, provides the general rules that control the classification of data that travel from one government entity to another. Of relevance here are two provisions of that subdivision. According to section 13.03, subdivision 4 (c), [t]o the extent that government data is disseminated to state agencies, political subdivisions, or statewide systems by another state agency, political subdivision, or statewide system, the data disseminated shall have the same classification in the hands of the agency receiving it as it had in the hands of the entity providing it. However, pursuant to subdivision 4 (a) of that section, [t]he classification of data in the possession of an agency 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 agency. (Emphasis added.) In this case, the statute that specifically applies to the OCVO governs the classification of the data in the Report. Pursuant to section 611A.74, subdivision 2, [t]he ombudsman's files are confidential data . . . during the course of an investigation or while the files are active. Upon completion of the investigation or when the files are placed on inactive status, they are private data on individuals . . . . Accordingly, the data on individuals in the Report are private, given that the OCVO investigation into the matter is complete. However, there appears to be an inconsistency within the OCVO's own statute. Pursuant to subdivision 3 (b) of section 611A.74: The ombudsman may request and shall be given access to information and assistance the ombudsman considers necessary for the discharge of responsibilities. The ombudsman may inspect, examine, and be provided copies of records and documents of all elements of the criminal justice system and victim assistance programs. The ombudsman may request and shall be given access to police reports pertaining to juveniles and juvenile delinquency petitions, notwithstanding section 260B.171 or 260C.171. Any information received by the ombudsman retains its data classification under chapter 13 while in the ombudsman's possession. Juvenile records obtained under this subdivision may not be released to any person. [Emphasis added.] In this case, that inconsistency does not affect the classification of most of the data in question. Most of the data Minneapolis provided to the OCVO are private, pursuant to section 13.43, subdivision 4. However, the OCVO may want to seek clarification on the point. Regarding the second issue, section 611A.74, subdivision 5 (c), provides the following: [t]he ombudsman may publish conclusions and suggestions by transmitting them to the governor, the legislature or any of its committees, the press, and others who may be concerned. The Commissioner does not believe that language constitutes the authority, pursuant to section 13.03, subdivision 4 (a), for the OCVO to, in effect, change the classification of data from private to public through publication of the entire Report. The OCVO is authorized to publish only conclusions or suggestions. One further note is in order. There is some dispute as to whether the Minneapolis police officers were given proper notice of their rights under section 13.04, subdivision 2, commonly known as a Tennessen Warning. Mr. Ginder does not agree with Ms. Goodman-Brown that the officers interviewed by the OCVO were given proper Tennessen Warnings. In addition, Ms. Walther stated that Minneapolis did not inform the officers that the data they provided to the City during the internal affairs investigation could be disseminated to the OCVO. Neither the OCVO nor Minneapolis provided the Commissioner with a copy of the Tennessen Warnings administered in connection with this matter. However, if it did not, Minneapolis should have included in its Tennessen Warning to the police officers that the data they provided in the course of the internal affairs investigation would be provided to the OCVO upon its request. The OCVO, if it did not, should have included in its Tennessen Warning to the police officers that data they provided to OCVO that formed part of its conclusions or suggestions might be disseminated to the governor, the legislature or any of its committees, the press, and others who may be concerned. (For more in-depth discussion of the Tennessen Warning requirement, see also Advisory Opinions 95-028 and 98-042.) Opinion:Based on the facts and information provided, my opinion on the issues raised by Ms. Goodman-Brown is as follows:
Signed: David F. Fisher
Dated: February 15, 2000 |
Data subjects
Data subjects
Educational data
Educational data
Tennessen warning
Tennessen warning
Crime Victims Ombudsman
Employment setting
Entities authorized to receive data
Change in classification 13.03
