January 20, 1994; Minnesota Department of Public Safety
1/20/1994 10:14:43 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:On January 4, 1994, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Mr. Robert B. Whereatt, a staff writer at the Minneapolis Star Tribune. The facts Mr. Whereatt alleged in his request were as follows.Ms. Sharon Harris of the Minnesota Department of Corrections conducted an investigation for the Department of Public Safety, hereinafter Public Safety , about the work environment at the Minnesota Bureau of Criminal Apprehension. This investigation was prompted by a variety of allegations from current and former employees of the Bureau. According to Mr. Whereatt, Mr. Michael Jordan, the Commissioner of the Department of Public Safety, of which the Bureau of Criminal Apprehension is a part, has declined to release the findings and supporting materials prepared by Ms. Harris as a result of her investigation. Commissioner Jordan has cited M.S. 13.39, subd. 2, and M.S. 13.43, subd. 4, as prohibiting him from releasing the material to the media and the complainants. Mr. Whereatt then asked for a Commissioner's opinion on the issue stated below. In response to Mr. Whereatt's request, PIPA, on behalf of the Commissioner of Administration, wrote to Commissioner Jordan. The purposes of this letter, dated January 4, 1994, were to inform Commissioner Jordan of Mr. Whereatt's request, to acquaint him with the Commissioner of Administration's authority to issue opinions, to ask Public Safety or its attorney to provide any information in support of its position and to inform Public Safety of the date on which the Commissioner was required to issue this opinion. Copies of this letter were sent to Mr. Whereatt and to the Attorney General's Office. On January 12, 1994, via facsimile transmission, PIPA received a letter of response from Commissioner Jordan. In that letter, Commissioner Jordan pointed out that this was an investigation that was conducted about the former superintendent of the Bureau of Criminal Apprehension. Commissioner Jordan stated that he had not released any of the investigative information to any third parties, including the complainants, the accused Bureau employee or the media because of the provisions of Minnesota Statutes Sections 13.39, subdivision 2 and 13.43, subdivision 4. Commissioner Jordan went on to discuss the application of these two statutory provisions to the investigative data. As to support for a position that the investigative data is covered by Minnesota Statutes Section 13.39, Commissioner Jordan stated the investigative data were collected by a state agency and are being retained in anticipation of a pending civil legal action. He added that: I was advised by counsel that the chief attorney acting for MDPS (Public Safety) determined that a pending civil legal action was anticipated because of correspondence I received on December 10, 1993, from an attorney retained by the complaining parties. Public Safety subsequently provided a copy of this letter from attorney Stephen Cooper who described himself as being retained by Bureau of Criminal Apprehension employees. Mr. Cooper asked to meet with Commissioner Jordan to discuss the concerns of the employees and the investigation and to attempt to reach closure on corrective actions. Commissioner Jordan went on to state that even if this civil investigative data were deemed to be inactive under the Minnesota Statutes Section 13.39, the data would be private personnel data under the provisions of Section 13.43, subdivision 4. Commissioner Jordan discussed the provisions of Section 13.43, subdivision 2 that make certain data about complaints and charges against public employees and data about disciplinary actions public data. In this instance, Commissioner Jordan concluded, that because no disciplinary action would be taken against this former employee . . . the data collected on him during the investigation are private personnel on him under Minn. Stat. Section 13.43, subd. 4, and may not be released without his informed consent or a court order.
Issue:
In his letter, Mr. Whereatt described the issue for which this opinion was sought as follows:
Discussion:
Whether the data concerning the investigation, collected and created by Ms. Harris, is accessible by the general public, as represented by members of the Minnesota media community, or by the current or former employees of Public Safety who made complaints about the former superintendent of the Bureau of Criminal Apprehension., is a function of the classification of this particular data. The Minnesota Government Data Practices Act, hereinafter MGDPA presumes that all government data, including that collected, created and maintained by agent of a state agency, are accessible by the public unless there is a state statute or provision of federal law that says the data in question are not public. (See Minnesota Statutes Section 13.03, subdivision 1.) As federal law is not a consideration in this particular instance, Public Safety can properly deny public access to this investigative data if the data are classified as not public by statute.
Public Safety has taken the position that these investigative data are classified as not public by Minnesota statutes Sections 13. 39 and 13.43. Analysis of these two sections and how they relate to this particular data reveals the following. Minnesota Statutes Section 13.39, which is captioned civil investigative data does not contain an actual definition of that term. The working definition of the term that emerges from analysis of the section is as follows: Civil investigative data are either data collected by an entity subject to the MGDPA as part of an active investigation that was undertaken for the purpose of the commencement or defense of a pending civil legal action or data being retained by a government entity in anticipation of a pending civil legal action. Civil legal actions include a variety of judicial and administrative proceedings including arbitration proceedings. Whether a civil legal action is pending is a determination to be made by the chief attorney acting for the government entity. Civil investigative data are classified as confidential in the case of data on individuals and protected nonpublic in the case of data not on individuals. Because of those classifications, civil investigative data are not accessible by either the public or any individual or other person who is the subject of civil investigative data. It is Public Safety's position that the investigative data generated by Ms. Harris are civil investigative data. In support of that position, Commissioner Jordan points out that he has acted consistent with that position by not releasing data to any of the subjects of the data or to the public. He also points out that he has been advised by counsel that a key element of the definition of civil investigative data, the requirement that the chief attorney acting for Public Safety determine that a civil legal action is pending, has been met. Given the somewhat conciliatory tone of Mr. Cooper's letter a genuine question could be raised as to whether the existence of the letter and its content is sufficient to conclude that a civil legal action against Public Safety is pending. However, Minnesota Statutes Section 13.39 clearly assigns that judgement call to the chief attorney acting for Public Safety. In this particular instance, the attorney has determined, according to Commissioner Jordan, that a pending civil legal action is pending and therefore it is permissible for Public Safety to treat the investigative data as civil investigative data for purposes of access under the MGDPA. Commissioner Jordan points out that even if this data were determined to be inactive at some future point under the provisions of Minnesota Statutes Section 13.39, subdivision 3, that this particular investigative data would then become private data. Section 13.39, subdivision 3 states that inactive investigative data become public unless portions of a civil investigative file are classified as not public by this chapter or other law. In the instance of this particular investigative data, it is the position of Public Safety that once it becomes inactive, it is still classified as not public by the provisions of Minnesota Statutes Section 13.43. Section 13.43 is the personnel data section of the MGDPA. The section contains two lists of data on employees, former employees and applicants for employment that a government entity subject to the MGDPA must treat as public data. (See Minnesota Statutes Section 13.43, subdivisions 2 and 3.) For all other personnel data, i.e. data on individuals collected because the individual is or was an public employee or is or was an applicant for public employment, the general rule is that all personnel data that is not listed in subdivisions 2 or 3 are private data. (See Minnesota Statutes Section 13.43, subdivision 4.) Private data are not accessible by the public but are accessible by the individual who is the subject of the private data. (Minnesota Statutes Section 13.02, subdivision 12.) In a situation where personnel data is gathered in response to a complaint or charge against an employee, the fact that a complaint or charge has been made, the status of the investigation of the complaint or charge and whether the complaint or charge resulted in a disciplinary action are all clearly public data. (Minnesota Statutes Section 13.43, subdivision 2.) Whether any details about the complaint or charge or the investigation of that complaint or charge become public are a function of whether or not the complaint or charge results in a disciplinary action. If a final disciplinary action is taken against a public employee, then the final disposition of that disciplinary action, the specific reasons for the action and data that document the basis for the disciplinary action are all public data. If no disciplinary action is taken against the public employee, then none of the detailed data about the complaint or charge or the details of the investigation become public data but remain private data It is Public Safety's position that the investigation into the complaints or charges against Martin Rahinsky, the former superintendent of the Bureau of Criminal Apprehension has been completed. This investigation did not result in any disciplinary action against Mr. Rahinsky. Because no disciplinary action will be taken, there can be no final disposition of a disciplinary action and without the final disposition of a disciplinary action, none of the data that details the complaints or charges against Mr. Rahinsky or the details of the investigation can be made available to the public. In its enactment of Minnesota Statutes Section 13.43, subdivision 2, which was reexamined and amended after the Supreme Court's decision in Annandale Advocate v. City of Annandale, 435 N.W. 2d 24, (Minn. 1989), the legislature has balanced the privacy rights of public employees against the right of the public to gain access to data about public employees. The balancing point rests on whether a disciplinary action is taken against an employee or former employee in response to complaints or charges against the employee or former employee. If disciplinary action is taken, considerable data about the details and basis for that action become public. If no disciplinary action is taken, then very little data become public. The particular investigation about Mr. Rahinsky did not result in any disciplinary action being taken against him. Given that fact and the language of the Minnesota Statutes Section 13.43, subdivisions 2 and 4, it is clear that Public Safety is required to treat the details of the investigation, including the details of the complaints or charges and the data collected and created in the investigation as private data. This is the result dictated by Minnesota Statutes Section 13.43. Opinion:Based on the correspondence in this matter, it is my opinion on the issue raised by Mr. Whereatt that:
Signed:
Debra Rae Anderson
Dated: January 20, 1994
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Civil investigative data
Personnel data
Chief attorney has substantial discretion to determine
Civil investigative data (13.39)
Final disposition of disciplinary action
Disciplinary action not taken, data not public
