Facts and Procedural History:

On October 8, 2003, IPAD received a letter from Colonel Mary V. Johnson, Staff Judge Advocate of the Minnesota Department of Military Affairs (MDMA.) In her letter, Colonel Johnson asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by MDMA. Colonel Johnson's request required clarification and additional information.

Pursuant to section 13.072, subdivision 1 (a), the Commissioner chose to seek comments from the subject of the data in question. In a letter dated October 17, 2003, the Commissioner asked Major General Eugene Andreotti, former head of MDMA, for his comments, which General Andreotti submitted. Upon review of the information submitted by General Andreotti (see below), and additional clarification and discussion with IPAD, MDMA staff withdrew the opinion request, on the belief that federal law controlled the classification of the data in question.

Subsequently, Colonel Johnson, in consultation with IPAD, renewed her opinion request, and provided additional information in support of her belief that the Commissioner had authority to address the issue under Minnesota Statutes, section 13.072. The Commissioner agreed, provided General Andreotti with the additional information, and sought additional comments from him, in a letter dated November 25, 2003. General Andreotti reiterated his earlier position. A summary of the facts of this matter follows.

Due to the dual state-federal status of its function, it is necessary to this discussion to examine the organization and structure of the Minnesota National Guard. Upon IPAD's request, Colonel Johnson provided information about same.

The following are excerpts from Colonel Johnson's comments:

The National Guard exists in each state and territory by virtue of the US Constitution, Article 1, Sec. 8, Clauses 14 and 15. The Constitutional basis for the National Guard is separate and distinct from that of the active duty forces of the United States. The National Guard is a State military organization, whereas the US Army AF, Navy and Coast Guard are federal entities. The Minnesota National Guard and its members do not become part of the federal military unless and until they are called to federal active duty service under Title 10 of the US Code.

The Minnesota National Guard is comprised of the Minnesota Air National Guard and Minnesota Army National Guard. It is comprised of full-time National Guard members (under Title 32 of the US Code), federal civil servants (who must also be Guard members), state employees, and 'traditionals' (people who are civilians . . . but drill as Guard members . . . ).

The role of the National Guard is two-fold: to be prepared and responsive to the Governor in the event of a state emergency requiring the protection of persons or property; and to train members of the Minnesota National Guard to federal standards so they are ready if called to federal active duty in the event of national emergency or war. Unless and until called to service with the federal active duty military under Title 10, members of the National Guard remain part of an organization that is exclusively a state organization, accountable through the Adjutant General to the Governor, who is the Commander-in-Chief. Today, many of our National Guard members have been called to federal active duty and are deployed to Bosnia, Kosovo, Iraq and Afghanistan. These members have lost their affiliation with the Minnesota National Guard (a State military organization) and are now members of the US Air Force or US Army (federal Title 10 active duty organizations) for the duration of their active duty tours. They have a chain of command that ends with the President and does not include the Minnesota National Guard. When they are released from federal active duty, these members revert automatically to their status as members of the Minnesota National Guard, a state organization.

The Minnesota National Guard is headed by the Adjutant General. The Adjutant General is the administrative head of the Department of Military Affairs. He is an employee of the State of Minnesota and is paid by the State with the same status as the other Commissioners. This is so even though he wears a federal military uniform and participates during drill weekends for federal pay. The only time the Adjutant General is not accountable to the Governor is when he is on federal active duty with the US Army (or Air Force where the Adjutant General is an Air Force Officer). This federal duty arises when the Adjutant General travels overseas or if he were to be called to federal Title 10 active duty in response to some federal call-up. At present federal duty is rare, limited to a few weeks per year. When on Title 10 duty, the Adjutant General is accountable to the federal US Army and President just like the rest of the Guard members who are called to federal active duty. When he returns from active duty, he reverts seamlessly to his State status in charge of the National Guard.

Even though it is a State organization, the Department of Military Affairs is funded in large part by federal funds. There is a tradeoff for the federal funding. That is, the Department of Military Affairs must train the National Guard members to be ready for their federal mission according to Title 32 of the US Code, federal standards and regulations. Even though individual members wear a US Army or US Air Force uniform, receive federal pay, accrue federal retirement benefits, and train to federal standards, the Guard remains a state organization until called to federal Title 10 duty.

Records are regularly collected, maintained and stored by the Minnesota National Guard in the course of its State and federal duties. Among these records are cell phone records for the Guard leadership. The cell phones are issued by the Guard for the conduct of Guard business. I am told that these phones are paid for with federal funds, much the same as federal funds pay for the majority of the operating and maintenance costs of the Minnesota National Guard. Nonetheless, the phone bills are collected, maintained and stored by the National Guard as a State organization.

General Andreotti, in his comments, asserted that the classification of the data was governed under federal law, namely the Freedom of Information and Privacy Acts. General Andreotti provided a copy of a United States Department of the Army and the Air Force, National Guard Bureau, document, dated June 12, 1998, on the following subject: Freedom of Information Act/Privacy Act (FOIA/PA) Information Memorandum - State v. Federal Records. In his comments to the Commissioner, General Andreotti stated:

I have no objection to processing the request [for his cell phone records] as provided for under applicable law. However I believe the applicable law is federal law (FOIA and Privacy Act), not the state Data Practices Act. This is because (1) the telephone service was paid with federal funds; and (2) records relating to the telephone service are kept pursuant to federal (Army) regulations; and (3) National Guard Bureau has a policy letter dated 12 June 1998 that states records pertaining to an individual, maintained in a system of records on behalf of a federal agency to accomplish a federal agency function, which are retrievable by the individual's name or other personal identifier, are covered by the Privacy Act and are federal records.

Accordingly, federal law should apply and this request should be processed under applicable federal regulation.

Issue:

In her request for an opinion,Colonel Johnson asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of cell phone records of a current or former employee that the Minnesota Department of Military Affairs maintains?

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Discussion:

On the issue of whether state or federal law applies here, the Commissioner has the following comments. According to Colonel Johnson, MDMA, while funded largely by the federal government, is a state agency for purposes of Chapter 13. She stated that the phone bills are collected, maintained and stored by the National Guard as a state organization. Major Andreotti was an employee of the State of Minnesota.

Pursuant to section 13.03, subdivision 1, unless there is a federal law that specifically classifies data maintained by a Minnesota government entity, such as MDMA, the data are classified under state statute. Pursuant to Minnesota Statutes, section 13.02, subdivision 7, government data are defined as all data collected, created, received, maintained or disseminated by any state government entity. The Commissioner is not aware of any provision of federal law that preempts the applicability of Chapter 13 to the classification of these records. The definition of government data does not include an exception for data related to an activity paid for with federal funds. Furthermore, the Commissioner is of the opinion that the National Guard Bureau policy letter does not carry the force and effect of law. Accordingly, the cell phone records are subject to classification under Chapter 13, not the federal FOIA or Privacy Act. However, according to Colonel Johnson, General Andreotti periodically was on active duty status, during which time he was a federal employee. If any of the phone bill data relate to his federal service, the Commissioner believes that those data may be subject to classification under federal law.

Pursuant to section 13.43, personnel data are defined as data on individuals collected because the individual is or was an employee of a government entity. Pursuant to section 13.02, subdivision 5, data on individuals are all government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

Pursuant to section 13.03, subdivision 1, government data are presumed public unless otherwise classified by statute, federal law, or temporary classification (see section 13.06). The treatment of personnel data, however, runs contrary to the general presumption. Section 13.43, subdivision 2(a), sets forth the types of personnel data that are public, and subdivision 4 classifies most other personnel data as private.

The Commissioner has considered the classification of data related to public employees numerous times. In Advisory Opinion 00-002, the Commissioner concluded that because local telephone numbers that an employee calls are not included in the list of public personnel data enumerated at subdivision 2 of section 13.43, they are private. (Section 10.46 provides that long-distance telephone bills paid for by the state or a political subdivision are public. Colonel Johnson stated that she was advised that General Andreotti's cell phone was paid for from federal funds. As noted above, the source of the funds does not dictate whether state or federal law governs the classification of the data. However, if the cell phone bills had been paid for by the state, the long-distance portion would be public, under section 10.46.)

In 00-002, the Commissioner did not have an opportunity to examine the actual telephone bills, and did not address whether the employee was the subject of all of the data contained in the phone bills. As noted above, section 13.43 (personnel data) classifies data on individuals, i.e., all government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual. (See section 13.02, subdivision 5.) Here, it appears that neither General Andreotti nor another public employee is the subject of at least some of the data contained in the cell phone records. For example, the bills contain the dollar amount of the monthly charge. Therefore, those data in the bills that are not on individuals cannot be personnel data. They are public pursuant to the general presumption.

The Commissioner expanded his consideration of the classification of data related to public employees in Advisory Opinion 01-075. In that opinion, the Commissioner was asked about the classification of data maintained on a city's computers, in a case in which the government entity had a policy in force that allowed employees to make limited use of city-owned computers for personal matters. The Commissioner opined:

Thus, while the vast majority of data that exist on a City employee's PC or laptop are government data, there also may be data on the employee's computer that are personal. What constitutes these personal data depends on what the City has authorized for personal use. Any such personal data are not government data because, although they have been created and/or maintained on a government-owned PC or laptop, the employee did not create them in her/his capacity as a government employee, and the purpose of the data is not related to the operation of government. Personal data, therefore, do not fall under the purview of Chapter 13 and the Commissioner does not have authority to address the classification of such data.

In Advisory Opinion 02-049, data on an employee's computer that, under the logic employed in 01-075 would otherwise have been personal data, were government personnel data under section 13.43, because the Department relied on those data as part of the basis for disciplinary action taken against the employee. The Commissioner opined: [t]he Department is maintaining the images (regardless of the context under which X collected them) to document action it took against X. Therefore, it does not seem reasonable for either X's attorney or the Department to argue that the data are personal (as the Commissioner discussed that term in Advisory Opinion 01-075), rather than government data. The Commissioner concluded that because those data formed part of the basis for final disciplinary action taken against the employee, the data were public personnel data. (See section 13.43, subdivision 2 (a)(5).)

In this situation, the cell phone billing records contain public and private government data, and data that are not classified under Chapter 13. In order to determine which data are subject to classification under Chapter 13, MDMA must determine first, if and when General Andreotti was on active duty status during the time period for which the cell phone records are sought. If any data relate to a time when General Andreotti was on federal duty, those data may be classified under the federal FOIA/Privacy Act.

Second, MDMA must determine if there is an employee who is the individual subject of personnel data, i.e., data on the employee that were collected because the individual is or was an employee of a government entity. It appears, from the copies of the cell phone bills provided, that some of the data in the bills are not data on individuals, and are, therefore, presumptively public. If MDMA determines that General Andreotti, or any other public employee, is the subject of personnel data in the phone bills, then those data are private under section 13.43, unless any of the data ever constitute the specific reasons for or document the basis of any final disciplinary action. As discussed in 02-049, data that are used as the basis for final disciplinary action are public.

Third, MDMA must determine whether any of the data are personal as discussed above. If MDMA has a policy that allows some use of cell phones for personal communications, then per 01-075, those data are personal not government personnel data and are not classified under Chapter 13; the Commissioner does not have the authority to address their classification.

MDMA must examine the individual data elements in the cell phone records, in light of the discussion above, to determine the classification of each.

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Opinion:

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

Pursuant to Minnesota Statutes, Chapter 13, the cell phone records of a current or former employee, maintained by the Minnesota Department of Military Affairs, contain public and private government data, and data that are not classified under Chapter 13.

Signed:

Brian J. Lamb
Commissioner

Dated: December 31, 2003

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