Discussion:

There appears to be no dispute that L filed a charge with the Minnesota Department of Human Rights (MDHR) and that the file is now closed.

Data that the MDHR collects, creates, maintains, etc., are classified at Minnesota Statutes, Chapter 363. Data subjects' rights to gain access to investigative data are outlined in two sections. Section 363.06, subdivision 8, provides that the charging party may review the answer of the respondent. Section 363.061, subdivision 3, classifies data contained in closed files:

(a) Except as otherwise provided in this subdivision, human rights investigative data contained in a closed files are private data on individuals or nonpublic data. The name and address of the charging party and respondent, factual basis of the allegations, the statute under which the action is brought, the part of the summary of the investigation that does not contain identifying data on a person other than the complainant or respondent, and the commissioner's memorandum determining whether probable cause has been shown are public data.

b) The Commissioner may make human rights investigative data contained in a closed case file inaccessible to the charging party or the respondent in order to protect medical or other security interests of the parties or third persons.

(The Commissioner assumes clause (b) is not at issue in this opinion because the MDHR has not asserted that medical or security interests are a factor in determining which data are accessible to L.)

In addition, subdivision 4 of section 363.061 states the charging party is entitled to gain access to data comprised of materials and documentation provided by a charging party that is part of an open or closed file.

In L's opinion request, s/he wrote, On August 4, 1999, the Commissioner for MDHR made a partial response to my request and informed me to go to court for additional documents. L further stated, MDHR has provided only the documents supplied by me. They have told me that they have many documents provided to them by...but they will not release those documents without a court order.

In his response, Mr. Varco wrote:

[L] is not entitled to all of the data in the Department's closed...file. [L] is not entitled to private data on any individual other than [him/herself]....[L] is unable to have access to any nonpublic data in the Department's closed investigative file other than that to which [s/he] is the subject....

[L] is entitled to certain data in the closed...file...Minn. Stat. section 363.06, subd. 8 (1998), for example, allows [L] to review the answer to the charge submitted by the respondent. Furthermore, Minn. Stat. section 363.061, subd. 4 (1998) provides that materials and documentation provided by [L] to the Department are accessible pursuant to Section 13.04, subdivision 3. The Department has provided [L] with copies of all materials [s/he] submitted to it.

Mr. Varco added that certain data in a closed investigative file are public (see section 363.061, subdivision 3) and therefore accessible to L. Mr. Varco wrote, The Department has provided [L] with copies of all public data in the closed...file. In answering L's charge that the MDHR had not provided L with certain data, Mr. Varco stated:

[The MDHR] is...willing to continue to examine the documents in its enclosed [the Commissioner believes Mr. Varco meant closed ] investigative file; to provide [L] access to those documents to which [s/he] has statutory access; and to work with [L] to explain to [him/her] those documents which are available for review, those which are not, and the reasons for that availability or nonavailability.

L requested access to all data about him/her. Pursuant to section 363.06, subdivision 8, L is entitled to review the respondent's answer. Further, pursuant to section 363.061, subdivision 3 (a), L is entitled to gain access to data of which s/he is the subject. In addition, L is entitled to gain access to the public data in the closed file (name and address of the charging party and respondent, factual basis of the allegations, the statute under which the action is brought, the part of the summary of the investigation that does not contain identifying data on a person other than the complainant or respondent, and the commissioner's memorandum determining whether probable cause has been shown). Finally, pursuant to section 363.061, subdivision 4, L is entitled to gain access to the materials and documentation L submitted as part of his/her charge.

Although not entirely clear, it appears there may be some disagreement between the parties as to which data the MDHR provided to L. A further complication is that the Commissioner cannot clearly discern from Mr. Varco's comments which data the MDHR asserts it provided to L. L stated that in response to his/her request, the MDHR provided L with only those data L had submitted as part of the charge. Mr. Varco stated that the MDHR provided L with 1) copies of all the materials L submitted and 2) copies of all public data in the closed file. In addition, although Mr. Varco discussed the fact that L is also entitled to private data of which s/he is the subject and to the respondent's answer, Mr. Varco did not explicitly state that the MDHR had provided such data to L.

The Commissioner does not know the exact content of the data in the closed file or which specific data the MDHR provided to L. Therefore, he cannot state with certainty whether the MDHR responded appropriately. However, pursuant to Chapter 363 and sections 13.03 and 13.04, L is entitled to gain access to the following data: any private data of which s/he is the subject (not limited to that contained in L's submissions); any public data, including data contained in his/her submissions; and, the respondent's answer. If L has not yet gained access to those data, the MDHR should provide them to him/her forthwith.

One final point is in order. Given the broad scope of L's request, i.e., access to all data the MDHR maintains about him/her, if the MDHR has any data about L other than those that make up the investigative file, the MDHR should also be responding to that aspect of L's request.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: October 7, 1999