Facts and Procedural History:

On January 14, 2004, IPAD received a letter from John P. Borger, an attorney, on behalf of his client, Star Tribune, publisher of the Star Tribune newspaper. In his letter, Mr. Borger asked the Commissioner to issue an advisory opinion regarding the Star Tribune's right to gain access to certain data maintained by the Minnesota Department of Corrections ( Department ). Mr. Borger's request required clarification with IPAD staff.

In response to Mr. Borger's request, IPAD, on behalf of the Commissioner, wrote to Joan Fabian, Commissioner of the Department. The purposes of this letter, dated January 23, 2004, were to inform her of Mr. Borger's request and to ask her to provide information or support for the Department's position. In addition, the Commissioner determined that the advisory opinion could affect the data subject's rights under Minnesota Statutes, Chapter 13. Therefore, IPAD wrote to David Dusek, attorney for Alfonso Rodriguez, Jr., the data subject, inviting him to submit comments.

On February 6, 2004, IPAD received a response from Commissioner Fabian.

Upon receiving a copy of the Department's response, Mr. Borger submitted additional comments, in a letter dated February 13, 2004, which IPAD received on February 17, 2004. On February 18, 2004, IPAD received a letter, dated same, from Commissioner Fabian, in which she commented on Mr. Borger's February 13, 2004, correspondence.

IPAD informed Mr. Borger that in order for the Commissioner of Administration to consider his additional comments, it would be necessary to withdraw his original opinion request and submit a new request, which Mr. Borger did, in a letter dated February 19, 2004.

IPAD wrote again to Commissioner Fabian, in a letter dated February 20, 2004, informing her of the revised issues the Commissioner would address in the opinion. Commissioner Fabian responded with comments in a letter dated February 26, 2004. IPAD also wrote again to Mr. Dusek, seeking comments on behalf of Mr. Rodriguez. Upon review, Mr. Dusek determined that the issues the Commissioner will address do not relate to his representation of Mr. Rodriguez in connection with his criminal case, and asked IPAD to solicit a response directly from Mr. Rodriguez. However, Emily K. Wilson, of Mr. Dusek's office, did provide additional comments in a letter dated February 27, 2004. Mr. Rodriguez did not respond to IPAD's February 24, 2004, correspondence.

A summary of the facts of this matter follows. Alfonso Rodriguez, Jr., a convicted sex offender, is in custody in Grand Forks, North Dakota, on charges of kidnapping, and is under investigation for suspected homicide. Mr. Rodriguez served a prison sentence in Minnesota; he was released in May 2003.

Apparently, prior to his May 2003 release, the Department conducted two reviews of Mr. Rodriguez. One was a civil commitment review, as provided under Minnesota Statutes, section 244.05, subdivision 7. The other was an end-of-confinement review to assess the risk level for purposes of the community notification process under Minnesota Statutes, section 244.052. Mr. Borger's opinion request relates to whether the public has the right to gain access to data related to those two review processes.

According to Mr. Borger, in December 2003, a reporter for the Star Tribune verbally requested access from the Department to data on the civil commitment process for Mr. Rodriguez. In a December 10, 2003, e-mail, the Department responded that any materials associated with [Mr. Rodriguez's review for civil commitment] are not public per M.S. 13.85, subd. 2. In that e-mail, the Department also stated that any materials associated with [Mr. Rodriguez's end-of-confinement review] are not public per M.S. 244.052, subd. 3.

In a December 11, 2003, e-mail, the reporter asked for a redacted copy of the review for civil commitment, and asked that, if his request was denied, the Department provide the specific paragraphs from the law so we can understand your reasoning. In a December 21, 2003, e-mail, the Department responded that, because the [civil commitment review] document . . . relates to a recommendation whether an individual should be referred for commitment as a person with a sexual psychopathic personality, as defined at section 253B.02, subdivision 18b, the data relate to psychological information, which are private under section 13.85, subdivision 2.

The Department also stated:

With regard to the release of a redacted version of the document, it is our position that while the document may contain some public information, because the referral evaluation involves deliberative review and weighing of many factors, including those which may not appear to be 'psychological' on their face, the public information is inextricably entwined with the private psychological information so that, after redacting the private data, the resulting document would be of little informational value. See Northwest Publications, Inc. v City of Bloomington 499 N.W. 2d 509 Minn. App. 1993); Prairie island Indian Community v. MN Dept of Public Safety, 658 NW2d876 (Minn. App 2003).

An analogy can be drawn from a medical doctor's exam report which might contain references to observations which do not, on their face, have a medical nature. In making a final diagnosis, the physician may very well weigh these observations as well as his or her other findings on exam. Asking the physician to reveal, after this weighing process, which factors were considered significant or not necessarily has the effect of revealing medical information.

The Star Tribune disagreed with the Department's stated position that, after redaction, the document would be of little informational value. Mr. Borger wrote that the Department has released redacted documents to the public that he believes do contain informational value. The reporter wrote to the Department, in a December 23 e-mail:

I disagree with your assertion that a document redacted to exclude non-public information would have little informational value in the context of this particular request. For example, the following information might be useful, if we had the redacted material: the dates of meetings, the names of participants in the meetings, how long each meeting lasted, how many documents were reviewed in the course of the internal discussion, how many pages were within each document, whether votes were taken, whether there were any dissents, who participated in each decision and some . . . description of the documents themselves.

The Department responded to the reporter in a December 31 e-mail: [i]t remains our position that the release of even expunged documents directly related to psychological or medical evaluation, including that for civil commitment under Minn. Stat. section 253B.185, would be an improper release of private data under Minn. Stat. section 13.85, subd. 2, because the evaluation process itself is private.

In his comments to the Commissioner, Mr. Borger wrote, in reference to the above: [t]his response appeared to abandon the prior position that some data were public but would be of little informational value with private data redacted. Instead, they now seem to take the broader position that all civil commitment review documents would be withheld 'because the evaluation process itself is private.' Mr. Borger wrote:

[The Department's] position certainly had no merit in the circumstances of this case. Given the many questions that have emerged about the process leading to Mr. Rodriguez's release, even details about the identities of participants in the review, the length of time spent and the number of documents reviewed, would be of significant public interest. . . . Similar information was provided in the Unit Case Coordinator Classification Notes, dated February 22, 1983.

Mr. Borger wrote that the Department did not explain how or why release of dates of meetings, participants in meetings, length of meetings, etc. would disclose 'medical, psychological, or financial information, or personal information not related to [an individual's] lawful confinement or detainment' in violation of section 13.85, subdivision 2.

In her February 6, 2004, comments to the Commissioner, Commissioner Fabian responded:

. . . the fact of whether an individual offender is referred for civil commitment is, in the Department's view, private under Minn. Stat. section 13.85, subd. 2, because it would disclose psychological data. While it is conceded that involvement in the crime of committing sex offenses is public, it is clear from the definitions of 'sexual psychopathic personality' and 'sexually dangerous person' contained in Minn. Stat. section 253B.02, subds. 18(b) and 18(c), respectively, that in addition to prior criminal behavior, there must be evidence of a mental disorder before civil commitment is pursued. For the sexual psychopathic personality, there must be 'conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters.' section 253B.02, subd. 18(b). For the sexually dangerous person, there must be a showing that the person 'has manifested a sexual, personality or other mental disorder or function.' section 253B.02, subd. 18(c). . . . .

Notwithstanding the criminal nature of the underlying sex offenses, the process for civil commitment of those with sexual psychopathic personality or sexually dangerous persons is a subset of the process for civil commitment of mentally ill and dangerous individuals. Civil commitment procedures, which in many cases 'would be of significant public interest' are nevertheless not carried out in the same public arena as criminal prosecutions.

Civil commitment hearings for sex offenders are closed, like other commitment hearings. Pursuant to Minn. Stat. section 253B.185, subd. 1, '[e]xcept as otherwise provided in this section, the provisions of this chapter pertaining to persons who are mentally ill and dangerous to the public apply with like force and effect to persons who are alleged or found to be sexually dangerous persons or persons with a sexual psychopathic personality.' Because that section does not specify whether a civil commitment hearing is open or closed, Minn. Stat. section253B.18, subd. 5(b), which closes commitment hearings for the alleged mentally ill and dangerous, controls. . . . .

With regard to Mr. Borger's comment that the Department had abandoned its prior position on its reasons for withholding the data, Commissioner Fabian stated:

Rather than 'abandoning' the position that documents are inextricably intertwined, it has remained the Department's position that, given the nature of the civil commitment assessment process, disclosure of factors considered and weighed in the course of determining whether it is appropriate to refer an individual offender necessarily discloses psychological information. The disclosure of redacted documents in this case would be analogous to releasing a doctor's exam report containing unredacted references to non-medical observations. Whether such observations were considered to be significant or not in making a medical diagnosis necessarily discloses medical information. It is the determination of whether a particular fact supports or does not support an assessment decision and the weight given to it that makes whatever otherwise public data considered during this process inextricably intertwined with private data. Removing all such data, leaving only data like 'the time spent and number of documents reviewed,' while possibly of 'significant public interest' would leave information with little value other than a basis for conjecture. Further, while this process in one individual case might arguably not pose a significant financial burden, when it is applied to 'others like [this individual], for purposes of possible future MGDPA requests,' it very well could.

The department does not take the position that when otherwise public data is considered in the civil commitment assessment process, it becomes private. . . . .

The Star Tribune's request, however, was not for arrest or other public data per se, but for civil commitment review materials related to a particular individual. For the reasons noted above, it is the Department's position that Minn. Stat. section13.85, subd. 2, precludes its release.

Finally, the Department believes that the fact that the Star Tribune somehow obtained data believed to be private under Chapter 13 from another source does not change its classification.

In his February 13, 2004, comments, Mr. Borger stated that the Star Tribune believes that section 13.85, subdivision 2, does not classify much of the data associated with the civil commitment process that the Department has withheld, as demonstrated by the full contents of the memoranda that the Star Tribune obtained from other sources and has provided to IPAD.

In reference to Commissioner Fabian's statement that, although the Star Tribune obtained the memoranda from a source other than the Department, the data contained therein are still classified under Chapter 13, Mr. Borger wrote:

To clarify, Star Tribune did not submit that particular data to IPAD for that purpose. Rather, this was an unusual situation in which a data requestor, who had been denied access to particular data, nevertheless had obtained a copy of some but not all of the requested data. By submitting that portion to IPAD, Star Tribune was better able to provide detailed examples of data that should have been disclosed by [the Department] but was not so disclosed. It is clear from any review of the submitted memoranda that it contains substantial amounts of public information, which [the Department] improperly refused to provide. That is the only reason Star Tribune submitted a copy to IPAD.

Star Tribune believes that even if there is a legitimate basis for redacting some information within the requested data . . . the rest of the data would be of public interest . . . Commissioner Fabian's position that information remaining after legitimate redaction would have 'little value other than a basis for conjecture' is no basis for failing to provide that information under the second part of the two-part test in the Prairie Island and Northwest Publications decisions. Those cases state that 'when a document contains both public and nonpublic information, the entire document may only be withheld if the public and nonpublic information is so inextricably intertwined that segregating the material would [1] impose a significant financial burden and [2] leave the remaining parts of the document with little informational value.' Prairie Island Indian Community v. Minnesota Dept. of Public Safety, 658 N.W.2d 876, 888 (Minn.App. 2003) (emphasis added). Government may not withhold public data simply because it fears the conclusions that the public might draw from that data. Although [redaction] limits the informational value of the documents, it provides public access to basic information.' Id. Commissioner Fabian also has made no effort to satisfy the first part of the test, which requires 'a significant financial burden' from segregating public and nonpublic data within the particular document(s) requested, not as to all documents that the Department has or that someone else might later request. [Emphasis provided.]

With regard to the issue of the classification of data related to the end-of-confinement review process, Mr. Borger discussed section 244.052, subdivision 3(c), which states that end-of-confinement review committees may gain access to certain private and confidential data. Mr. Borger cited the last paragraph, which provides: [d]ata collected and maintained by the committee under this paragraph may not be disclosed outside the committee . . . . In his original request, Mr. Borger wrote:

The paragraph itself grants the committee access to certain data on a predatory offender that is classified by statute as private and confidential data for purposes of its assessment. Thus, the non-disclosure provision is limited by terms of the enabling paragraph to data that is private or confidential. The committee is not prohibited from disclosing information that it has gathered if the information was public when the committee obtained it. It would be absurd, for example, for the committee to contend that newspaper clippings or broadcast tapes of the circumstances of a sexual offense committed by the offender under review became non-public just because they were collected or maintained by the committee. Absurd constructions of statutory language will not be applied. See Minn. Stat. section 645.17, (Legislature does not intend 'a result that is absurd, impossible of execution, or unreasonable'). Consequently, to the extent that data requested by the Star Tribune is properly classified as public data under section 13.85 . . . it remains public data when it is collected or maintained by the end-of-confinement review committee.

Mr. Borger also stated that arrest data, as enumerated at section 13.82, subdivision 2, are public under both section 13.82 and section 13.85, subdivision 2. Mr. Borger wrote that some of the specific arrest data elements are some of the same data that the end-of-confinement committee might consider pursuant to section 244.052, subdivision 3(g).

In her February 6, 2004, response to the Commissioner, Commissioner Fabian wrote:

This [end-of-confinement review] process is used to determine the risk level of a particular offender for purposes of the community notification process contained in Minn. Stat. section244.052. It is the Department's position that this data is private under Chapter 13.

Section 244.052 (referenced in Minn. Stat. section13.851, subd. 6) sets out very specific handling for end-of-confinement review data. It allows graduated disclosure, based on the determined level of danger, of data to certain defined segments of the public by the local law enforcement agency in the area where an individual offender resides. Minn. Stat. section244.052, subd. 4.

The Star Tribune concedes that under section244.052, subd. 3(c), '[d]ata collected and maintained by the committee under this paragraph may not be disclosed outside the committee, except as provided under section 13.05, subdivision 3 or 4.' They argue, however, that this only refers to private and confidential data gathered by the committee, suggesting that any other construction would be absurd, e.g., making a newspaper clipping private if it is collected by the committee.

Initially, the Department notes that Minn. Stat. section13.05, subd. 4, already prohibits a state agency from disseminating private or confidential data on individuals, and that under section13.03, subd. 4(c), data 'traveling' from one agency to another retains the same classification it had before. Consequently, if the legislature's sole objective was to assure that the private and confidential data gathered and reviewed by the end-of-confinement review committee remain private or confidential, respectively, they would not have had to specifically say so in section244.052.

Again, contrary to the argument of the Star Tribune, it is not the Department's position that review by the end-of-confinement committee makes previously public data private, it is simply that data related to the end-of-confinement review process is not to be disclosed. Again, the committee reviews a broad range of data, including public file data such as arrest and conviction data, which have been provided.

In Advisory Opinion 98-004, the Commissioner reviewed whether data on a risk level notification sheet disseminated to a school district under section 244.052 was public or private. In concluding that it was private, the Commissioner noted that 'the data in the [end-of-confinement] committee reports are classified as not public data.' It was these reports that formed the basis for the fact sheet in question. The Commissioner did not specify that only the otherwise private or confidential data in the committee reports was private under section 244.052, subd. 3(c). This, however, is the result that the Star Tribune is urging.

In his February 13 comments, Mr. Borger disagreed with Commissioner Fabian's assertion that the section244.052, subd. 3(c), phrase under this paragraph was not necessary if the Legislature's intent was to ensure that any private or confidential data collected and maintained by the committee remain so. Mr. Borger wrote:

However, if the Legislature's intent had been to require that all data collected and maintained by the committee could not be disclosed outside the committee, there would have been no reason to include the phrase 'under this paragraph.' Under Minn. Stat. section 645.16, '[e]very law shall be construed, if possible, to give effect to all its provisions.' . . . .To give effect to all of the provisions of section244.052 subd. 3(c), the prohibition on disclosure must apply only to data collected and maintained pursuant to the special authorization of section244.052 subd. 3(c) (1)-(5) [sic], which grant the committee access to certain private data for specific purposes. The committee necessarily collects additional data, and that data is not prohibited from further disclosure. Thus, the mere fact that the committee creates or collects certain data does not in itself render that data not-public in the possession of the committee, as Commissioner Fabian argues. [Emphasis provided.]

In his original opinion request, Mr. Borger also referred to public comments made by Minnesota Governor Pawlenty that blamed the failure to refer Rodriguez for civil commitment as a sexual predator on 'bad judgment' by staff members at the Department of Corrections. He stated that [d]espite that criticism [from the Governor], the government employees who participated in the earlier decisions have not been publicly identified.

In reference to those comments, Commissioner Fabian wrote:

The Department has responded to at least one specific media request for the names of these employees that they were being held as private under Minn. Stat. section13.37. This provision permits the classification of data as private when the disclosure of such data 'would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury.' As noted by the Star Tribune, the situation related to the allegations against the sex offender at issue here has engendered 'significant public controversy.' It is also true that there is a substantial emotional content to this controversy. However understandable these emotions are, they contribute to an atmosphere which the Department believes poses the 'substantial jeopardy' to individual employees noted in section13.37. Not surprisingly, the Department has received substantial negative communication from the public on this matter. While only a few of these communications were generally threatening, the Department believes that the criteria in this section are broad enough that specific threats to an employee's safety are not required.

In addition to the criteria in section13.37, it must also be conceded that the identity of particular employees is personnel data under section13.43. Under subdivision 4 of that section, personnel data not otherwise specified as public is private. While section13.43, subd. 2, lists employee names and job description as public, it does not list the fact that a particular employee was involved in a particular decision as public data. To do so would have the effect of making individual employees very reluctant to make decisions in highly controversial situations. Moreover, to the extent that an employee in [sic] involved in a decision which may ultimately have disciplinary ramifications, disclosure that the employee was involved in this particular decision would have the effect of violating section13.43, subd. 2(5) prior to any final decision on disciplinary action.

In his February 13, 2004, response to Commissioner Fabian, Mr. Borger wrote:

Commissioner Fabian now asserts that the names of the employees who participated in the civil commitment review and end-of-confinement review of Alfonso Rodriguez are private data under Minn. Stat. section 13.37 and/or section 13.43 subd. 2(5). This breathtaking and pernicious interpretation of those statutes would shield public employees from any public criticism or accountability for their actions. Accepting that interpretation would undermine public trust in government and violate the public's right, recognized in numerous court decisions, 'to be informed of all actions and deliberations made in connection with activities ultimately geared to affect the public interest.' Prior Lake American v. Mader, 642 N.W.2d 729, 741 (Minn. 2002).

Public employees are not entitled to merge into a faceless mass, accountable to no one except their immediate superiors. When they attach their names to their normal work product, those names are part of the public government records. They are not, in that context, the 'subject' of the records, and the records were not collected or created 'because' the persons participating in the work were government employees. Of course, it is conceivable that in some contexts, documents created by a particular employee would be collected by a government agency in the course of evaluating or disciplining that employee, and in those contexts the data would be personnel data. . . . . Star Tribune has asked for the data in connection with Mr. Rodriguez, not in the context of any evaluation or discipline of the state employees. Mr. Rodriguez is the subject of the data. The state employees are not. [emphasis provided.]

Mr. Borger and Commissioner Fabian also discussed the applicability of a Minnesota Court of Appeals case, Star Tribune v. City of St. Paul, 660 N.W.2d 821 (Minn. App. 2003).

Mr. Borger also stated that there is no credible claim that any of the requested data are security data per section 13.37, because [t]he concerns stated by Commissioner Fabian do not rise to the level of 'substantial jeopardy to security.'

In her February 26, 2004, comments, Commissioner Fabian addressed Mr. Borger's February 13, 2004, statements regarding the applicability of section 13.37 to the names of the public employees involved in this matter:

Notwithstanding the Commissioner of Administration's recognition that section 13.37 gives a responsible authority substantial discretion to withhold data as non-public when the circumstances outlined in that section apply, the Star Tribune asserts that what the Department is urging is a 'blanket classification scheme.' Far from doing so, the Department's assertion relates to a unique set of circumstances where there has been substantial public concern and emotion related to the disappearance of a young woman and arrest of an individual formerly in the Department's custody.

In his February 13 comments, Mr. Borger also stated at the outset that, in her February 6 response to Mr. Borger's original opinion request, Commissioner Fabian raised new legal issues neither anticipated nor addressed in my prior letter. In response to that statement, Commissioner Fabian wrote, [w]hile the Star Tribune's initial letter did not present specific arguments related to the issue of release of the names of the employees involved in the decision in controversy, it is difficult to see how this can be characterized as a 'new issue' in light of Mr. Borger's reference to the fact that the government employee[s] who participated in the earlier decisions have not been publicly identified, despite criticism from the Governor. Commissioner Fabian also stated, [a]s for the issue of the End-of Confinement Review and review for civil commitment, it is our view that rather than raising new arguments in our response, we clarified positions the Department has maintained throughout this matter.

Commissioner Fabian summarized the Department's position as follows:

The Department concedes that, given the nature of the allegations against [Mr. Rodriguez], there is, understandably, significant public interest and controversy involved in this matter. This, however, does not change the nature of the data involved. The Star Tribune argues that the Department violated Chapter 13 by taking a broad view that materials associated with the end-of-confinement review and civil commitment review of a particular sex offender are private. In partial support, they point to documents they obtained from other sources that contain data they argue is public. The Department's position is not that either of these processes make data which would otherwise be public into private data. It is that Minn. Stat. section244.052 makes end-of-confinement review data private and that civil assessment data is private psychological data under section13.85, subd. 2, and that to the extent otherwise public data is considered and weighed in the assessment process, disclosure of this data in the specific context of that assessment, by necessity, discloses private psychological data. Finally, the Department believes that the names of the individual employees involved in the decision in this matter are private security data under section13.37 and private personnel data under section13.43, subd. 4.

In her comments to the Commissioner, Ms. Wilson stated that her firm chose to comment on this matter only because of the potential impact it could have on our client's pending criminal case in North Dakota. Ms. Wilson stated that the firm agrees with the positions taken by the Department, that the data requested are private. She wrote that if there are any data in the reports that are otherwise public, this information would be readily available from other non-private sources. Ms. Wilson stated [t]he decision to release this information could potentially have a serious and immediate impact on this pending criminal matter. We believe it is best for this material NOT to be released at all.

Issues:

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

Are any materials associated with a sexual offender's end-of-confinement review public data under Minnesota Statutes? Are any materials associated with a sexual offender's review for civil commitment public data under Minnesota Statutes? Did the Minnesota Department of Corrections respond appropriately under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, when it denied Star Tribune's request for access to data associated with the confinement and release of Alfonso Rodriguez, Jr.?

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Discussion:

Issue 1:

Are any materials associated with a sexual offender's end-of-confinement review public data under Minnesota Statutes?

Minnesota Statutes, section 244.052, subdivision 3 (c), provides:

The [end-of-confinement review] committee shall have access to the following data on a predatory offender only for the purposes of its assessment and to defend the committee's risk assessment determination upon administrative review under this section:

(1) private medical data under section 13.384 or 144.335, or welfare data under section 13.46 that relate to medical treatment of the offender;
(2) private and confidential court services data under section 13.84;
(3) private and confidential corrections data under section 13.85; and
(4) private criminal history data under section 13.87.

Data collected and maintained by the committee under this paragraph may not be disclosed outside the committee, except as provided under section 13.05, subdivision 3 or 4. The predatory offender has access to data on the offender collected and maintained by the committee, unless the data are confidential data received under this paragraph.

Thus, under this subdivision, in order to conduct its review, an end-of-confinement review committee has the authority to gain access to private or confidential data about an individual offender, as provided under clauses (1)-(4), which constitute most of the data used by the committee in its review. The committee also may gain access to other private or confidential data from within the Department (see section 13.851), per Minnesota Rules, parts 1205.0400 and 1205.0600 (permitting access by individuals within the entity whose work assignments reasonably require access). Further, this subdivision prohibits the dissemination of any of the data listed under clauses (1)-(4), i.e., private or confidential data, outside the committee, including to others within the Department, except that the offender may gain access to private data.

In its discussion of this issue, the Department takes the position that under the final paragraph of section 244.052, subdivision 3, all materials associated with the end-of-confinement review process are not public. Commissioner Fabian stated that other statutory provisions would suffice to ensure that the private and confidential data gathered and reviewed by the end-of-confinement review committee remain private or confidential.

Mr. Borger's position is that, because this provision of section 244.052 grants the committee access to certain private and confidential data for purposes of its assessment, the non-disclosure provision is limited by terms of the enabling paragraph to data that is private or confidential. He stated that it would be absurd, for example, for the committee to contend that newspaper clippings or broadcast tapes of the circumstances of a sexual offense committed by the offender under review became non-public just because they were collected or maintained by the committee.

The Commissioner is of the opinion that section 244.052, subdivision 3(c), applies only to data on the individual offender that the committee obtains under clauses 1- 4 of that subdivision. Those data may not be disclosed outside the committee. Under section 13.03, subdivision 4, other private or confidential data to which the committee has access, such as data classified under section 13.851, retain their classification as not public, but are not subject to the limitation on dissemination outside the committee.

Section 244.052, subdivision 3(c) does not classify data that are not about an individual sex offender. Commissioner Fabian referred to Advisory Opinion 98-004 in support of the Department's position that all of the data related to the end-of-confinement committee review process are not public. Pursuant to Minnesota Statutes, section 244.052, subdivision 3 (f), before the offender is released from confinement or accepted for supervision, the end-of-confinement review committee shall prepare a risk assessment report that specifies the risk level to which the offender has been assigned and the reasons underlying the committee's risk assessment decision. In 98-004 the Commissioner addressed the issue of whether a government entity may disseminate a Level II Sex Offender notification fact sheet. The data in a sex offender fact sheet are derived from a committee's report and disseminated by a local law enforcement agency. The discussion in that Opinion focused on the private and/or confidential data about the offender to which the committee is authorized to gain access, i.e., the data enumerated at section 244.052, subdivision 3 (c), and the Commissioner opined that the data about the offender in the committee reports, i.e., data about the individual offender, are classified as not public.

Here, the Star Tribune asked the Department to redact the data about Mr. Rodriguez from the end-of-confinement review materials, and provide it with access to the remaining public data, e.g., dates of meetings, participants in meetings, length of meetings, etc. The Star Tribune asserts, and the Commissioner agrees, that any such data that are not about the individual offender are not classified under section 244.052, subdivision 3(c). The Commissioner is not aware of any provision that classifies any end-of-confinement review data that are not on individuals as not public. Minnesota Statutes, Chapter 13, classifies data, not documents. Accordingly, pursuant to section 13.03, subdivision 1, data not on individuals contained in materials associated with the end-of-confinement review process are presumptively public.

The Commissioner did not have an opportunity to examine all of the documents in question, and therefore cannot comment on whether the public data contained therein are inextricably intertwined with the not public data, as the Department has asserted. Based on what the Commissioner has reviewed, he is of the opinion that at least some redaction is possible. In light of the discussion above, the Department needs to review the documents in question and redact them if possible in order to provide the public with access to public data contained therein.

With respect to the classification of the names of public employees involved in the process, the Department takes the position that those data are private, under both section 13.43, as personnel data, and section 13.37, as security data.

Pursuant to section 13.43, subdivision 1, personnel data are data on individuals collected because the individual is or was an employee of a government entity. Data not specified as public under subdivision 2 of section 13.43 are classified as private under subdivision 4. Under section 13.43, subdivision 2, employee names and work assignments are public.

Commissioner Fabian stated that because the fact that a particular employee was involved in a particular decision is not listed as public data under section 13.43, subdivision 2, those data are private. She said that if those data were public, it would have the effect of making individual employees very reluctant to make decisions in highly controversial situations. Moreover, to the extent that an employee in [sic] involved in a decision which may ultimately have disciplinary ramifications, disclosure that the employee was involved in this particular decision would have the effect of violating section13.43, subd. 2(5) prior to any final decision on disciplinary action.

Mr. Borger stated that the employees involved in the review process are not, in that context, the 'subject' of the records . . . .

Of course, it is conceivable that in some contexts, documents created by a particular employee would be collected by a government agency in the course of evaluating or disciplining that employee, and in those contexts the data would be personnel data. . . . . Star Tribune has asked for the data in connection with Mr. Rodriguez, not in the context of any evaluation or discipline of the state employees. Mr. Rodriguez is the subject of the data. The state employees are not. [Emphasis provided.]

The Commissioner agrees with Mr. Borger that, in the context in which the Star Tribune requested access to data related to the end-of-confinement review process for Mr. Rodriguez, the names of any public employees involved are not private personnel data. As Mr. Borger stated, the documents in question were created as part of the process to evaluate Mr. Rodriguez, not for a purpose such as evaluating or disciplining the employees conducting the review. The name of an employee as having, for example, participated in a meeting, is not private data about the employee.

With respect to the applicability of section 13.37 to the names of the employees, Commissioner Fabian stated that the Department's assertion that the names of employees are protected under section 13.37 is not a blanket classification scheme, but instead relates to a unique set of circumstances where there has been substantial public concern and emotion related to the disappearance of a young woman. Commissioner Fabian stated, the Department has received substantial negative communication from the public on this matter. While only a few of these communications were generally threatening, the Department believes that the criteria in this section are broad enough that specific threats to an employee's safety are not required.

The Commissioner acknowledges that government entities have discretion to classify data as not public under section 13.37, and in general, defers to that discretion. However, there are statutory limits to that discretion. The Department has not provided the Commissioner with information that is specific enough or otherwise sufficient to demonstrate clearly that the release of data such as the name of a Department employee, in the context of this particular work assignment, would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. (Emphasis added.) Therefore, based on the limited information provided to support the substantial jeopardy argument, it does not appear the Department can protect the names of the public employees involved in this process under section 13.37.

Issue 2:

Are any materials associated with a sexual offender's review for civil commitment public data under Minnesota Statutes?

Pursuant to Minnesota Statutes, section 13.85, subdivision 1, corrections and detention data are data on individuals created, collected, used or maintained because of their lawful confinement or detainment in state reformatories, prisons and correctional facilities, municipal or county jails, lockups, work houses, work farms and all other correctional and detention facilities. Pursuant to subdivision 2:

Unless the data are summary data or arrest data, or a statute specifically provides a different classification, corrections and detention data on individuals are classified as private pursuant to section 13.02, subdivision 12, to the extent that the release of the data would either (a) disclose medical, psychological, or financial information, or personal information not related to their lawful confinement or detainment or (b) endanger an individual's life.

Under section 244.05, the Commissioner of Corrections must make a determination whether to refer an offender to the appropriate county attorney, who then decides whether to initiate civil commitment proceedings. Commissioner Fabian stated that even the fact that an individual offender is referred for civil commitment is private under section13.85, subdivision 2, because it entails a clinical psychological determination, and given the nature of the civil commitment assessment process, disclosure of factors considered and weighed in the course of determining whether it is appropriate to refer an individual offender necessarily discloses psychological information. Commissioner Fabian stated that, according to the definitions of sexual psychopathic personality and sexually dangerous person provided at section 253B.02, subdivisions 18(b) and 18(c), respectively, in addition to prior criminal behavior, there must be evidence of a mental disorder before civil commitment is pursued.

After the Department's initial denial of access, the Star Tribune requested access to redacted data. The Department responded that the data in the documents are inextricably intertwined, and that, after redaction, the document would be of little informational value. Mr. Borger disagreed, and stated that the Department has released to the public redacted documents that he believes do have informational value. Mr. Borger stated that the Star Tribune believes that section 13.85, subdivision 2, does not classify much of the data associated with the civil commitment process that the Department has withheld, as demonstrated by the full contents of the memoranda that Star Tribune obtained from other sources and has provided to IPAD.

Commissioner Fabian also said that the Department does not take the position that when otherwise public data are considered in the civil commitment assessment process, the data become private. The Star Tribune's request, however, was not for arrest or other public data per se, but for civil commitment review materials related to a particular individual.

Other than the memoranda obtained by the Star Tribune, the Commissioner has not examined any of the documents at issue, and therefore cannot evaluate whether the data are inextricably intertwined. The documents provided by Mr. Borger do contain otherwise public data, i.e., criminal history and arrest data. However, unlike the issue in the discussion above, related to the end-of-confinement review process, the issue of whether the data are or are not inextricably intertwined does not need to be resolved here, because, as the Department noted, even to identify an offender as having been referred under the provisions of section 244.05 would disclose psychological data. The statute does not define that term, but according to the American Heritage College Dictionary (Houghton Mifflin Company Boston 1997) definition, psychological means [o]f, relating to, or arising from the mind or emotions. The data as a whole are evaluated in the context of a psychological evaluation, and are therefore private under section 13.85, subdivision 2. Furthermore, as Commissioner Fabian noted, the Star Tribune did not ask for public criminal history or arrest data, but rather asked for data associated with the civil commitment review process for Mr. Rodriguez.

As discussed above, the Commissioner believes that even the fact that an individual offender has been evaluated for referral for civil commitment is not public. It follows then that all data collected and maintained by the Department for purposes of making that assessment for Mr. Rodriguez are not public.

Issue 3:

Did the Minnesota Department of Corrections respond appropriately under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, when it denied Star Tribune's request for access to data associated with the confinement and release of Alfonso Rodriguez, Jr.?

The Department first told the Star Tribune reporter that the data on the civil commitment process are not public per section 13.85, subdivision. 2. The reporter then asked for a redacted copy of the review for civil commitment, and asked that, if his request was denied, the Department provide the specific paragraphs from the law so we can understand your reasoning.

The Department responded that, because the civil commitment review document relates to a recommendation whether an individual should be referred for commitment as a person with a sexual psychopathic personality, as defined at section 253B.02, subdivision 18b, the data relate to psychological information, which are private under section 13.85, subdivision 2. The Department also stated its position that while the document may contain some public information, because the referral evaluation involves deliberative review and weighing of many factors, including those which may not appear to be 'psychological' on their face, the public information is inextricably entwined with the private psychological information so that, after redacting the private data, the resulting document would be of little informational value.

The reporter disagreed, and asked again for access to a redacted copy. The Department responded, in the December 31 e-mail: [i]t remains our position that the release of even expunged documents directly related to psychological or medical evaluation, including that for civil commitment under Minn. Stat. section 253B.185, would be an improper release of private data under Minn. Stat. section 13.85, subd. 2, because the evaluation process itself is private.

Mr. Borger wrote to the Commissioner, in reference to the above: [t]his response appeared to abandon the prior position that some data were public but would be of little informational value with private data redacted. Instead, they now seem to take the broader position that all civil commitment review documents would be withheld 'because the evaluation process itself is private.' Mr. Borger wrote that the Department did not explain how or why release of dates of meetings, participants in meetings, length of meetings, etc. would violate the section 13.85, subdivision 2, prohibition on disclosure of medical, psychological, or financial information, or personal information not related to [an individual's] lawful confinement or detainment.

In her February 6, 2004, comments to the Commissioner, Commissioner Fabian responded that the fact of whether an individual offender is referred for civil commitment is, in the Department's view, private under Minn. Stat. section13.85, subd. 2, because it would disclose psychological data.

Mr. Borger believes that the Department changed its position with respect to its rationale for denying access to the data. Commissioner Fabian stated: it is our view that rather than raising new arguments in our response, we clarified positions the Department has maintained throughout this matter.

The Commissioner acknowledges Mr. Borger's point of view, but respectfully disagrees. In the Commissioner's opinion, the Department maintained its basic position regarding the statutory basis for its denial, while elaborating in response to the Star Tribune's requests for more specific explanations. It would have been helpful had the Department, from the beginning, provided a more detailed explanation of how it viewed the application and relationship of the many statutory provisions that apply to the analysis of how the data in question are classified.

The Commissioner wishes to note that under section 13.05, subdivision 1, and Minnesota Rules, part 1205.1200, subpart 3, government entities must prepare and update, on an annual basis, a public document that sets forth the classifications of the data they maintain. Compliance with those requirements can reduce the confusion that arises in this kind of situation.

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Opinion:

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

Materials associated with an individual sexual offender's end-of-confinement review contain a mixture of public and not public data. Data contained therein that are about the offender are not public, pursuant to Minnesota Statutes, section 244.052, subdivision 3(c). Under section 13.03, subdivision 4, private or confidential data to which the committee has access, such as data classified under section 13.851, retain their classification as not public, but are not subject to the limitation on dissemination outside the committee. Private or confidential data about the offender obtained by the committee under authority other than section 244.052(c) retain their classification. Section 244.052, subdivision 3(c) does not classify data that are not about an individual sex offender; therefore, those data are presumptively public. Based on the information available, the Commissioner does not agree that the names of employees involved in the end-of-confinement review process may be protected under section 13.37 or section 13.43. The names are public data under section 13.43, subdivision 2. Materials associated with a sexual offender's review for civil commitment are not public pursuant to section 13.85, subdivision 2, because even the fact that an offender is/has been evaluated for referral to the civil commitment process is private. The Minnesota Department of Corrections responded appropriately under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, when it denied the Star Tribune's request for access to data about Alfonso Rodriguez, Jr., that are associated with his confinement and release.

Signed:

Brian J. Lamb
Commissioner

Dated: April 9, 2004

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