Issues:

In his/her request for an opinion, X asked the Commissioner to address the following issues:

Discussion:

Issue 1

It appears that the audio tapes at issue were created by employee(s) of the Department during telephone conversations the employees had with X.

In her response, Ms. Devine wrote:

DHS complied with the Data Practices Act when it disclosed copies of audio tapes to X, notwithstanding their lack of clarity. Because the original tapes were not clear to begin with, DHS was unable to provide X with a copy that was clearer than its original.

...However notwithstanding that data should be disclosed in a form that is easily accessible, there is no provision in [Chapter 13] that requires an agency to enhance a tape recording or alter a recording to make it more understandable or clearer than it was in its original form....

The tapes that were sent to X may in fact be difficult to understand in parts. However, due to the condition of the original tapes, they are not any more understandable to DHS than they are to X. In this case, there was no intent to prevent X from obtaining data to which [s/he] was entitled.

The Commissioner has the following comments. On one hand, it is correct that government entities are not required to create data to respond to a data request. However, one of the principles of Chapter 13 is that individuals gain access to government data in a meaningful fashion. Both section 13.03 and 13.04 require government entities, upon request, to inform requestors of the meaning of data. If an entity does not understand data it has created, it is not clear how the entity can discuss the meaning of the data with the requestor. In this case, although DHS is not required to reproduce the tapes, if the Department chooses to audiotape certain telephone conversations in the future, it needs to take Chapter 13 into account and insure that the meaning of the tapes is clear.

Issue 2

Pursuant to section 13.04, subdivision 3, government entities are required to respond to data subjects' requests for access to data within ten working days.

In her response, Ms. Devine wrote:

To the best of DHS' knowledge, DHS has provided X with access to all data it has concerning X, with the exception of the documents that were withheld in response to X's July 13, 2000, request. DHS is not aware of any other data it possesses pertaining to X other than what it has already produced or identified as withheld. DHS has made a due and diligent search of the data it has pertaining to X, and complied with the Data Practices Act.

In this case, there is a dispute over the facts. X asserts that DHS has not fully responded to his/her request. The Department asserts that it responded to the request in full. The Commissioner cannot make a determination one way or the other. The Records Management statute, section 138.17, et. seq., does authorize DHS to dispose of government records once they have outlived their usefulness to the Department. It is possible that records about X have been disposed of under the Records Management Act. However, if DHS currently maintains additional data about X, it should provide any such data to X immediately.

Issue 3

In her response to the Commissioner, regarding DHS' withholding of data pursuant to section 13.43, subdivision 8, Ms. Devine wrote:

X was a [former] applicant for a job at DHS...

...several DHS employees complained about their growing discomfort when dealing with X's harassing...behavior....It is evident from X's recent accusations that [his/her] conduct is escalating...If DHS did not take prompt and immediate action to protect its current employees from harassment, it could be subject to liability for creating a hostile work environment or for allowing employees to be harassed by X.

Section 13.43, 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.

The Commissioner respectfully disagrees with the Department's analysis. Section 13.43, subdivision 8, clearly applies to access to data by persons who are employed by a government entity. Ms. Devine wrote that X was once an applicant for a job at DHS; X was not an employee. Therefore, DHS cannot use section 13.43, subdivision 8, as a basis to withhold data from X.

Ms. Devine also argued that DHS can withhold data from X pursuant to section 13.37, subdivision 1(a), security data:

Security information means government data the disclosure of which would be likely to substantially jeopardize the security of...individuals...against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury.

Pursuant to subdivision 2 of section 13.37, security data are classified as private.

The Commissioner has the following comments. First, Ms. Devine did not state clearly what type(s) of data the Department is withholding pursuant to section 13.37. However, it appears DHS may be withholding names of employees. Ms. Devine wrote:

DHS has an ongoing concern for the security and safety of its employees relative to X. X's history of harassment and aggression has been well documented by several state agencies...and various employees of DHS. The false allegations X has made about [a DHS staff person] harassing [X] as well as X's disregard for the parameters of contacting DHS show X's current propensity for threatening behavior. [X's] past threats and escalating harassing behavior against staff at DHS and other agencies is clear.

The Commissioner addressed a similar issue in Advisory Opinion 00-071. The Commissioner wrote:

While section 13.43 classifies names of employees as public, section 13.37 classifies security data as not public. In this case, it is the Commissioner's opinion that section 13.37 modifies section 13.43; employee names are public except when the release of those names would substantially jeopardize the security of...individuals... Because DLI has asserted it believes the release of the employee names would substantially jeopardize the security... of those employees, it is the Commissioner's opinion that DLI can withhold the data.

That said, however, the Commissioner points out he is aware of the potential for entities to inappropriately withhold data pursuant to section 13.37. The problem is that the Legislature, by not defining substantially jeopardize, has provided government entities with a great deal of discretion in determining whether or not they can rightfully withhold data. Therefore, the Commissioner welcomes guidance from the Legislature in interpreting section 13.37 (1)(a) so that he can better assist entities in understanding their obligations under Chapter 13 and better assist individuals in realizing their rights under Chapter 13.

Thus, in this case, it is the Commissioner's opinion that DHS may appropriately withhold employee names if the Department has determined that a release of those names would substantially jeopardize the security of those employees.

Ms. Devine also wrote, Any communications DHS has had with its own security department concerning X is security data' and as such is not accessible to X. Further, any communications DHS has had with its employees as a safety measure concerning X is also security data' and is not accessible to X.

The Commissioner respectfully disagrees. First, any communications relating to X that DHS has had with its security department are not necessarily classified at section 13.37. For example, it is not reasonable that a communication stating, X is coming to the Department today, is data that seriously jeopardizes the safety of persons or property. Also, some security service data are public pursuant to section 13.861. Therefore, Ms. Devine's statement that any such communications are not accessible to X is incorrect.

Second, because DHS did not provide detailed information about what constitutes a safety measure concerning X, the Commissioner is unable to determine whether DHS can appropriately withhold data from X pursuant to section 13.37, subdivisions 1(a) and 2.

Regarding DHS' withholding of data pursuant to section 13.30, Ms. Devine wrote:

DHS has its own in-house attorneys that provide legal advice and consultation about various issues, including but not limited to data practices concerns. DHS also relies upon the attorneys at the Office of the Attorney General who provide consultation, representation, and legal advice. In this instance, DHS has sought and received legal advice concerning X from both sources. The nature of these communications has not only been orally, but also in writing and by e-mail. DHS had not waived its attorney client privilege and expects its attorneys to not knowingly reveal confidences, either....

Communications concerning X which DHS has had with its attorneys were not disclosed to X, as indicated in its letters to X, dated July 28, 2000 and August 25, 2000. Withholding such data from X does not violate the Data Practices Act.

The Commissioner addressed a similar issue in Advisory Opinion 00-062. He wrote:

The Commissioner has addressed discussed the applicability of section 13.30 in previous advisory opinions. In Advisory Opinion 95-045, the Commissioner wrote:

As discussed in Commissioner's Advisory Opinion 95-040, the Commissioner believes the intent behind and the purpose of Section 13.30 is to clarify that the use, collection, storage, and dissemination of data by attorneys acting in their professional capacities are controlled by statutes, rules, and professional standards which relate to discovery, production of documents, introduction of evidence, and professional responsibility. In other words, if certain data are protected, as an attorney's work product, pursuant to a particular statute, rule, or professional standard, no provision in Chapter 13 or Section 15.17 supersedes and/or alters the classification or treatment of those data.

It should be noted, however, that the last phrase of Section 13.30 indicates the Legislature did not intend for this Section to relieve responsible authorities, other than attorneys, from their duties and responsibilities under Chapter 13 or Section 15.17. Otherwise, a government entity could effectively shield any data it did not wish to disclose, by turning the matter over to its attorney. If Mr. Krafts' logic were accepted, anything an attorney did related to the use, collection, storage, and dissemination of data could be exempted from regulation under Chapter 13. By including the last phrase of Section 13.30, the legislature clearly intended to prevent just such an occurrence.

Denying access to data based on attorney/client privilege is somewhat different than denying access based on section 13.30. When an entity claims attorney/client privilege, it is asserting that communications occurred between itself and its attorney and that those communications are protected.

In the case of this opinion, it appears that DHS denied X access to data based on both section 13.30 and attorney/client privilege. This is appropriate; the Department has authority to withhold such data from X.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: December 22, 2000