Facts and Procedural History:

Maggie R. Wallner, attorney for a school district (District), asked for an advisory opinion regarding data that the District maintains pursuant to Minnesota Statutes, Chapter 13, the Minnesota Government Data Practices Act (Data Practices Act). 

The District provided a summary of the facts.

[T]he School District received, from parents of a student, written complaints against a number of school employees, as well as a school resource officer (the “Officer”). The School District retained a law firm to conduct an investigation into the allegations.

Notably, the Officer is not an employee or independent contractor of the School District, but rather is employed by the City as a member of its police department. The Officer declined to be interviewed in the School District’s investigation, and the Police Chief informed the School District that an investigation would be conducted by the City if it received a complaint from the parents. The parents declined to submit a complaint to the City.

Issue:

Discussion:

The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.  

The Data Practices Act defines “personnel data” as: 

[G]overnment data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.

The existence and status of a complaint against an employee are always public. Unless there is a final disposition of disciplinary action, the subject and the nature of the complaint are private. (Section 13.43, subdivision 2(a)(4) and (5).)

In Advisory Opinion 97-030, a county employee complained about the work environment in an office that was co-located with a city department. In the subsequent investigation, the county interviewed both city and county employees. The county then asked the Commissioner about the classification of the data that the county maintained about city employees. The Commissioner opined: 

The data about City and County employees contained in the documents were collected, created, and are maintained by Blue Earth County because those individuals are or were employees of a government entity (in this case, either the City or the County). Therefore, those data in the possession of the County are classified pursuant to Section 13.43, personnel data….

***

As discussed above, any data about an individual collected by a government entity because that individual is or was an employee of a government entity, are classified per Section 13.43. In this case, the data about City Employee A were collected by the County because City Employee A is an employee of the City of Mankato, who, because of the operation of a joint County/City Department, works with County employees. Therefore, the data about City Employee A in the possession of Blue Earth County are classified per Section 13.43.

The police department and the District signed a Memorandum of Understanding (MOU) prior to the officer’s assignment at the District. It provides:

The School Resource Officer is a licensed peace officer that will be serving the [redacted] Public schools. This role is vital to the security, safety, and education within the public school system, therefore the partnership between the City of [redacted] Police Department and ISD [redacted] is key in order to implement effective policing in the school system. [Redactions provided.]

The MOU also specifies that the school resource officer (SRO) reports to the Chief of Police and the Chief and the Superintendent will have meetings to discuss performance and expectations.

In its opinion request, the District wrote:

The Officer is not an employee of the School District; he was not performing services on a voluntary basis; and he was not acting as an independent contractor. Rather, he is employed by the City and assigned to the School District.

However, the definition of personnel data, as highlighted above, applies to data on individuals maintained because the individual is an employee of a government entity. The Officer is indeed an employee of a government entity; it is just not the entity that maintains the data in question. [Emphasis provided.]

The Commissioner agrees with the District. The District collected the data about the SRO because the SRO is an employee of the police department, who also works within the District. This is consistent with the definition of personnel data in section 13.43 and Advisory Opinion 97-030.

Because the District cannot discipline the SRO, there can be no final disposition of disciplinary action. Thus, the only public data about the complaint against the SRO that the District maintains, are the existence and status. The parents were invited to submit their complaint regarding the SRO to the police department, where additional personnel data might have become public if certain conditions had been met, but they declined.  

The Commissioner encourages school districts and police departments to consider the data practices implications when assigning SROs to districts and to include data practices responsibilities and expectations in MOUs or other contracts between the parties. 

The Commissioner also notes that the application of section 13.43 depends upon whether data are maintained because an individual is an employee of a government entity. When an individual’s identity as a government employee is unconnected to the collection or creation of data, (i.e., an employee is acting in his/her personal capacity), the data are not personnel data. (See Advisory Opinion 07-004, names of government employees corresponding with their elected officials in their individual capacities are not personnel data accessible to the public.) 

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

Data related to a complaint by a parent about a School Resource Officer employed by a police department and maintained by a school district at which the SRO is assigned, are classified by Minnesota Statutes, section 13.43.

Signed:

Matthew Massman
Commissioner

Dated: April 16, 2018