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April 16, 2001; City of Cottage Grove
4/16/2001 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 February 22, 2001, IPA received a letter from Mark R. Anfinson, an attorney, on behalf of his client, the South Washington County Bulletin, a newspaper. In this letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data maintained by the City of Cottage Grove. In response to Mr. Anfinson's request, IPA, on behalf of the Commissioner, wrote to Ryan Schroeder, City Administrator. The purposes of this letter, dated February 23, 2001, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. On March 2, 2001, IPA received a response from Corrine H. Thomson, attorney for the City. A summary of the facts of this matter follows. According to Mr. Anfinson: In December of last year, the Cottage Grove City Council undertook to fill a vacancy that had occurred on the council. When the council's intention to fill the vacancy was announced, 18 people applied for the position. In an effort to reduce the number of applicants, the council decided to use secret ballots by which to choose a group of finalists (each council member indicating his or her choices on the ballot). However, in response to objections from the Bulletin about this procedure, the council abandoned it, but only after it had received the completed secret ballots from the city council members. According to Ms. Thomson: The city clerk retained the lists that the city council members had initially provided, in which the council members had identified 4 persons to interview. Because the city council had abandoned that process, the lists were never circulated to city council members and therefore played no role in the ultimate selection process. The city clerk and the city administrator are the only persons who have seen the lists. Ms. Thomson stated that the City takes the position that the data are private personnel data on applicants for employment, pursuant to section 13.43, subdivision 3. Issue:In his reqest for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:
Discussion:Pursuant to the relevant provision of the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 4 (a), [t]he votes of the members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal kept for that purpose. (Emphasis added.) Subdivision 5 provides that the journal must be open to the public. Mr. Anfinson stated: Furthermore, pursuant to the Minnesota Court of Appeals decision in Mankato Free Press v. City of North Mankato, 563 N.W.2d 291 (Minn. App. 1997), the Open Meeting Law does not permit a public body to make decisions by means of secret ballots. It would therefore seem anomalous to hold that even though the balloting procedure was conducted in contravention of the public's right to be informed about decisions made by a public body, the illegal ballots could nonetheless be withheld as private data. According to Ms. Thomson: Mr. Anfinson suggests in his letter that the Commissioner of Administration would be condoning 'illegal' balloting by allowing the data to remain private. There was no violation of the Open Meeting Law, because the City did not use the 'ballots' in the selection process. All discussion and votes took place in a public meeting, without the council members having seen or been informed about the previously solicited lists. Votes taken by a government entity at a meeting open to the public must be maintained in a journal that is accessible to the public. However, here, although characterized as ballots, the data in question were not votes relied upon by the City Council during the meeting in which the Council decided which applicants to interview. (In fact, the Council decided to interview all of the applicants.) Thus, the data do not constitute a vote on an action and therefore are not subject to the Open Meeting Law requirement that they be kept in a journal and made available to the public. The question before the Commissioner might be different if the City had actually relied upon the data in its selection process. However, the data are in existence. Under the presumption provided at section 13.03, subdivision 1, the data are public unless otherwise classified under state or federal law. According to Ms. Thomson, Cottage Grove considers its elected officials to be employees for data practices purposes. She stated: [t]he lists in question were collected because individuals were applicants for a vacant council position with the City and are data about those individuals. Under subdivision 4 of section 13.43, all personnel data is private data on individuals unless expressly made public under subdivision 3 of section 13.43. Ms. Thomson asserted that the data in question, namely an X' or checkmark placed next to an applicant's name, are data about individual applicants, and because those data are not made public under subdivision 3, they are private under subdivision 4. Mr. Anfinson stated: . . .we do not believe the ballots can be considered personnel data. Pursuant to Minnesota Statutes, section 13.43, subdivision 1, personnel data are data on individuals collected because the individual is or was . . . an applicant for employment by a government entity. Subdivision 3 classifies data about current and former applicants for employment. The following applicant data are public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. An applicant's name becomes public when that person is selected to be interviewed by the appointing authority. At that point, the applicant has become a finalist. Pursuant to subdivision 4, all other personnel data are private. The Commissioner has opined that elected officials are employees for purposes of section 13.43 if the government entity so considers them. (See Advisory Opinions 00-079 and 99-043.) Ms. Thomson stated that Cottage Grove City Council members are considered by the City to be employees. Accordingly, the applicants for the vacant Council position are applicants for employment, and data about them are classified at section 13.43, subdivisions 3 and 4. Under the classification scheme provided at section 13.43, which runs contrary to the general presumption that government data are public unless otherwise classified, the data in question, i.e., checkmarks beside applicants' names, are private personnel data, because they are not included in the data classified as public under subdivision 3. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Anfinson is as follows:
Signed:
David F. Fisher
Dated: April 16, 2001
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Elected and appointed officials
Personnel data
Open Meeting Law
Status as employees (13.601, 13.43)
Journal of votes, ballots
Finalist for public employment (13.43, subd. 3)
Personnel data (13.43)
