Issue:

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

Has the City of Eagan complied with Minnesota Statutes, Chapter 13, in its determination regarding a request for the Mayor's cellular phone bill?

Discussion:

Data on individuals collected because the individual is or was an employee of a government entity are classified pursuant to section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private. "Data on individuals" is defined as all government data in which any individual is or can be identified as the subject of the data, unless the appearance of the name or other identifying data clearly can be demonstrated to be only incidental to the data. (See section 13.02, subdivision 5.)

Chapter 13 is silent on whether elected officials are employees. Therefore, if an entity considers its elected officials to be employees for the purposes of Chapter 13, data about those individuals are classified pursuant to section 13.43. However, if an entity does not consider its elected officials to be employees for the purposes of Chapter 13, data about those individuals are public pursuant to the general presumption. Because the City denied Mr. Salberg access to certain data about the Mayor, such as the telephone number of his cellular phone, based on section 13.43, the Commissioner assumes the City considers the Mayor to be an employee for purposes of Chapter 13. (See Advisory Opinion 03-011 for a more detailed discussion about the treatment of data about elected officials.)

In her comments to the Commissioner, Ms. McGarvey wrote:

The decision to consider telephone numbers, other than the City of Eagan numbers, private data was reached in consultation with the City of Eagan's Attorney, Michael Dougherty. I believe memorandums, dated March 2 and March 5, 2004, outlining the basis for the City Attorney's recommendation were provided to you by Mr. Salberg, however I have enclosed them again for your convenience. I have also enclosed a copy of Mayor Geagan's cellular telephone record as it was presented to Mr. Salberg.

In his March 2, 2004, memorandum, Mr. Dougherty wrote:

...It is this office's understanding that Mayor Pat Geagan's cellular telephone for City use is paid by the City as part of his compensation.

It is understood that it is the City's policy not to release a City staff's or city councilmember's cellular telephone number to the public; the City hall telephone number, as well as the Mayor's home phone number is made available to the public....

It is our office's understanding that a Mayor's cellular telephone records (billing statements) includes [sic] the Mayor's cellular number, a list of outgoing calls with the telephone number to which the call was made and incoming telephone calls which list the Mayor's cellular number.

...Upon review of Minn. Stat. section10.46 and [Chapter 13], it is this office's opinion that the City should redact from the Mayor's cellular telephone records the following: (1) Any personnel data that is classified as not public and (2) Evidence of local phone useage. Section 10.46 provides:

Long distance telephone bills paid for by the state or a political subdivision, including those of representatives, senators, judges, constitutional officers, head of department and agencies, local officials and employees thereof, are public data.

Mr. Dougherty further wrote:

Secondly, as Mayor of the City of Eagan, certain of the City's data regarding Mr. Geagan would fall under personnel data . Section 13.43, which governs personnel data, specifically enumerates what data is public. A mayor's cellular telephone bill, or the telephone number or the numbers of those individuals to whom he placed a call or received a call, is not enumerated as public data.

In the present situation, the City provided to the Commissioner a copy of the phone bill it gave to Mr. Salberg. The data the City did not redact (black/white out) appear to be related to a voice mail number and also to numbers of City offices.

Where the City redacted the phone number called, the City also redacted related information, such as number of minutes and "Call Destination." ("Call Destination" includes items such as voice mail, a city, 411 connect, etc.)

The City also redacted the telephone number of the Mayor's cellular phone.

Although the Commissioner does not have enough information to determine, with certainty, whether the City appropriately redacted certain phone numbers and related information, he makes the following comments. First, any data in the bills relating to long distance telephone calls paid for by the City are public pursuant to Minnesota Statutes, section 10.46. Second, some of the data in the phone bills, such as the number of minutes per call, appear to be presumptively public.

Finally, if the Mayor or another employee is the subject of any of the data in the phone bills, those data are classified pursuant to section 13.43. (This assumes the City considers the Mayor an "employee" for purposes of Chapter 13.) Subdivision 2 of section 13.43 classifies the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. The Mayor's cellular phone number appropriately is classified as private as long as there is a public work number at which he can be reached. (See section 13.43, subdivision 2(a)(7).)

Mr. Dougherty, on behalf of the City, argued that the phone numbers of the individuals "to whom the Mayor placed a call or received a call" are not public data pursuant to section 13.43. Because section 13.43 classifies data on individuals, the City's position is defensible only if the Mayor or another employee is the subject of the data. The Commissioner finds the City's argument confusing given that the City did not redact City office phone numbers called by the Mayor.

The Commissioner also notes there are situations in which a government entity may be in the possession of data that are beyond the purview of Chapter 13. As he discussed in Advisory Opinion 01-075, if an entity has a policy that allows for personal use of government-owned equipment, related data are not government data, and are "personal" data. The entity's decision to release or not release those data is not governed by Chapter 13.

Opinion:

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

The Commissioner cannot determine, with certainty, whether the City of Eagan complied with Minnesota Statutes, Chapter 13, in its determination regarding a request for the Mayor's cellular phone bill.

Signed:

Brian J. Lamb
Commissioner

Dated: May 17, 2004