Facts and Procedural History:

The Authority was established by an ordinance of the City of Minneapolis to receive, consider and make determinations regarding complaints made by citizens alleging misconduct by any Minneapolis police officer. If the Authority sustains a complaint by a citizen, the complaint is forwarded to the Chief of Police for a disciplinary decision.

As part of its process of handling citizen complaints, the Authority, in an appropriate circumstance will suggest that the complainant and the police officer use mediation as a possible means to resolve the complaint. If the parties cannot agree to use mediation or if a mediation attempt is unsuccessful, the complaint will be referred for investigation by the Authority.

Under the Administrative Rules promulgated by the Authority, mediation is an informal process held before a neutral third party. (Ms. Hughes provided a copy of these rules as part of her submission to the Commissioner.) Except in situations involving children and vulnerable adults, the only persons allowed to attend the mediation session are the complainant, the officer and the mediator. No record is made of the mediation proceeding and no information discussed can be used in subsequent proceedings. The Authority or its agents do monitor the mediation process and the implementation of any mediation agreement.

According to Ms. Hughes, the Authority's file about a complaint could include the following information about mediation:

1. That one or both of the parties refused mediation;
2. That the parties mediated but came to no resolution;
3. That the complaint was successfully mediated;
4. That the successful mediation occurred prior to, during or after an investigation, but prior to any final decision about discipline; and ,
5. That, in rare cases, discipline was agreed to as part of the mediation agreement and that there is a final disposition.

Ms. Hughes further related that the Minneapolis City Attorney's Office has given the Authority an opinion as to the classification of data related to the mediation of complaints. However, because of the importance of mediation to the Authority's functioning, the Authority decided to also seek the opinion of the Commissioner about the classification of mediation data in Authority files. She then stated the issue to be addressed by the Commissioner's opinion that is reproduced in the Issue section below.

On May 20, 1994, PIPA received a letter from Ms. Ann E. Walther. Ms. Walther identified herself as the attorney for the Minneapolis Police Officers Federation. She asked for the opportunity to make comment on the issue raised by the Authority in its request for an opinion. In a letter dated May 26, 1994, Ms. Walther was informed by PIPA that she could comment on the issue raised by the Authority. On June 6, 1994, PIPA received a letter from Ms. Walther. In that letter, Ms. Walther made the following comments about the issue raised by the Authority.

Mediation of civilian review complaints is facilitated by an organization called the Minneapolis Mediation Services. According to Ms. Walther, this organization is not a government agency and any data it collects is not government data within the terms of the Chapter 13 of Minnesota Statutes, the Minnesota Government Data Practices Act.

With respect to mediation data in the possession of the Authority, it is Ms. Walther's contention that the data is private personnel data as classified by Minnesota Statues Section 13.43. Ms. Walther did point out that public personnel data may include . . . the terms of any agreement settling any dispute arising out of the employment relationship. However, she maintained that Ms. Hughes had stated that the Authority only receives a notification of the outcome of a mediation, successful or unsuccessful, and that this notification of outcome cannot be considered to be the terms of an agreement. She also pointed out that what she called notification of outcome data does not appear on the list of public personnel data, in Section 13.43, and therefore must be private data.

She then provided her opinion on the status of mediation data where the mediation might result in an agreement between the parties for the officer to accept discipline. She argued that because the discipline was agreed to at the Minneapolis Mediation Service, the data is not government data. Because Chapter 13 does not apply to the data, the issue of final disposition is irrelevant. While the fact that discipline was carried out by the City will be public data, the data supporting the discipline is not government data, and therefore is not covered by the Act.

Lastly, Ms. Walther stated that the Police Federation was strongly opposed to the treatment of mediation data as public on public policy grounds. She reviewed what she characterized as a strong public policy favoring the confidentiality of mediation as evidenced by Minnesota Statutes Section 595.02, subd. 1 (l). She also offered information that in keeping with this public policy that the Minneapolis Mediation Service considers mediation data to be confidential and has the parties participating in mediation sign confidentiality agreements. She observed the use of mediation to resolve complaints was strongly supported by the Federation, that mediation was positive alternative to the civilian review process. However, she also pointed out that if any information about the mediation process were to be treated as public information that she would advise officers not to participate in the process. It was her opinion that data generated about mediation of civilian review complaints are private and confidential and should remain so.

Issue:

Discussion:

Within Section 13.43, subdivision 2, the following personnel data about complaints or charges against an employee are public:

Other than data about the existence and status of complaints or charges made against employees, the status of the handling of those complaints or charges, both current and historical, and whether or not the complaint or charge resulted in a disciplinary action, no detailed data can be made public about a complaint or charge against an employee until there is a decision to impose disciplinary action and the proposed disciplinary action has become final. (Minnesota Statutes Section 13.43, subdivisions 2 and 4.) If no disciplinary action is imposed, either because there was a decision not to impose disciplinary action or a proposed disciplinary action was reversed in an appeal process, then only the limited data described above are public. (Minnesota Statutes Section 13.43, subdivision 2 (a) and (c). See also Annandale Advocate v. City of Annandale, 435 N.W. 2d 24 (Minn. 1989).)

In the Minneapolis process of the handling of complaints or charges against police officers, the ultimate decision as to whether or not to impose disciplinary action against an officer is a decision made by the chief of the Minneapolis Police Department. In an instance where the Authority determines that a complaint against an officer has been sustained, the Authority's Findings of Fact and Determination are submitted to the chief who makes a disciplinary decision based on the information. (See Section 9.0 of the Administrative Rules of the Minneapolis Civilian Police Review Authority approved by the Board of Directors of the Authority on October 31, 1990.) In the Minneapolis process, there is not a final disposition of a disciplinary action against a police officer until the chief of police imposes discipline and the officer, if he or she is covered by a collective bargaining agreement, either does not grieve the proposed disciplinary action under a collective bargaining agreement or does grieve the action with a result that the proposed disciplinary action is upheld by an arbitrator.

Given that process, and except for the limited data described above concerning existence of complaints, status etc., most of the data collected and maintained by the authority concerning processing of complaints against officers are not public data under, depending on the specifics of a particular complaint against an officer, Minnesota Statutes Sections 13.39, 13.43 or 13.82. The Administrative Rules of the Authority acknowledge that status for the Authority's data. (See Sections 1.221, 1.222, 1.223, 1.232 and 1.241 of the Rules of the Authority.) In addition to rules regarding not public data held by the Authority, the Authority also has promulgated a rule that states what data held by the Authority are treated as public data. (See Section 1.251 of the Rules of the Authority.)

Under Rule Section 1.251, the Authority has interpreted the phrase status of any complaints or charges against the employee , found in Minnesota Statutes Section 13.43, subdivision 2, to mean that the fact that a complaint is in mediation and the fact that a mediation agreement has been reached are public data. Although the word status is not defined in Section 13.43, it seems clear that the legislature intended that the public has a right to know, when a complaint or charge has been made against a public employee, the status of the processing of that complaint or charge in the government entity that is considering disciplinary action.

To tell the public where a given complaint or charge is in the entity's processing of the complaint, prior to there being a final disposition of a disciplinary action against the employee, does not reveal any substantive detail about what the complaint or charge is about. It merely tells the public, at given moments in time, just exactly what the entity is doing or has done procedurally with the complaint or charge. The communication of this type of data to the public responds in a reasonable way to the legislative directive that the status of complaints and charges against the employee are public data and must be made accessible to the public. (See Minnesota Statutes Section 13.03.)

Under the Rules of the Authority, the only data associated with mediation that the Authority has determined to be public are the fact that a complaint is in mediation and the fact that a mediation agreement has been reached. However, given the list of data provided by Ms. Hughes that the Authority might have in its files about mediation, it would be consistent with the public nature of status data if the Authority also treated the fact that mediation was attempted and was not successful as public data.

Data noting that one or both of the parties refused mediation is not status data and should not be treated as public during the processing of a complaint or charge. This data could become public data about the complainant, once the investigation of the complaint is no longer active. (See Demers v. City of Minneapolis, 468 N.W. 2d 71 (Minn. 1991).) It is possible, but very unlikely, that data about an officer's refusal to enter into mediation could become public if the officer were disciplined and the data about the officer's refusal to mediate were part of the data documenting the basis for a disciplinary action or were part of the specific reasons for the action.)

Data concerning the timing of the occurrence of mediation which may also appear in the Authority's files according to Ms. Hughes presents a unique problem of classification. In and of itself, the data does not appear to have anything to do with status. However, if a member of the public were to regularly check the status of the processing of a complaint or charge against an employee, it would be possible for that person to learn the timing of the occurrence of mediation merely by comparing the Authority's responses about the status of the handling of a complaint. The authority treats the fact that the complaint is being investigated as public status data . A member of the public, who sought access to status data at a given point in time, could be told by the Authority that the complaint was being investigated. If this person subsequently asked for status data and was told that the complaint was in mediation, the person would know that the mediation had occurred after some investigation had taken place. Given this practical reality, the timing of mediation, if mediation has occurred, can be properly treated as part of status data .

Lastly, Ms Hughes indicated that the Authority will have information about those cases where a mediation has resulted in the employee agreeing to some kind of disciplinary action. In those cases, it also appears according to Ms. Hughes' explanation that the agreement will constitute the final disposition of the complaint brought against the employee. In light of the Rules of the Authority, this possible disposition of a complaint against an employee is confusing. Although it is clear from Ms. Hughes' statement that a police officer could agree to accept some kind of discipline as part of a mediation agreement, it is equally clear under the Rules of the Authority that a copy of the mediation agreement will not be sent to the chief of police. (See Section 5.23 of the Rules of the Authority.) In light of those two statements, it is unclear how the discipline that the employee has accepted as part of a mediation agreement can be imposed by the City when the management person responsible for actually ordering the imposition of a disciplinary sanction will not be apprised of the discipline the employee has agreed to accept?

Even if it is unclear as to exactly how an agreed to disciplinary action can be imposed given the limitations described above, it seems clear that if an employee accepts the imposition of some kind of disciplinary action as part of an agreement negotiated through the mediation process that, in the language of Minnesota Statutes Section 13.43, subdivision 2, the complaint or charge has resulted in a disciplinary action. According to Ms. Hughes, in these instances, the officer's agreement to accept disciplinary action is a final disposition of the matter and therefore the reasons for the disciplinary action and any data documenting the basis for the disciplinary action would be public data. Given the fact that no record is kept of the mediation proceeding, the only data that exists that may document the basis for the disciplinary action and the reasons for the action is the mediation agreement. If that is the case, the mediation agreement would be public data.

The issue raised by Ms. Walther about the effect of the handling of data about mediation may have on the mediation process are clearly issues of legitimate concern. However, the statutory treatment of data associated with complaints or charges against public employees has been clear and consistent for several years. The Rules of the Authority that treat certain mediation related data as public status data have been in effect for almost four years. If the treatment of mediation data as described in this opinion has a deleterious effect on the mediation process used by the Authority, those issues should be raised with the legislature.

Opinion: