| Did Minnesota State University Moorhead (MSUM) comply with Minnesota Statutes, Chapter 13, when it denied access to the following data: contingency plans the University may have for strikes by any groups of employees at MSUM? |
Discussion:
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.
Section 13.37, subdivision 2, classifies labor relations information as private (data on individuals) and nonpublic (data not on individuals), and states that labor relations information relating to a specific labor organization is protected nonpublic (data not on individuals).
Section 13.37, subdivision 1(c), defines labor relations information as, . . . management positions on economic and noneconomic items that have not been presented during the collective bargaining process or interest arbitration, including information specifically collected or created to prepare the management position. Once management presents the data, the data lose their not public status and are public pursuant to the general presumption in section 13.03, subdivision 1.
In addition, section 13.37, subdivision 2, classifies security information as private (data on individuals) and nonpublic (data not on individuals).
In relevant part, section 13.37, subdivision 1(a), defines security information as, . . . government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. . . .
In his opinion request, regarding labor relations data, Mr. Kaspari wrote:
Labor relations information means a public employer's positions on contractual items governing its employees' terms and conditions of employment which have not yet been presented in the collective bargaining process. . . . This definition serves to permit public employers to control the timing of the presentation of their positions on specific items relating to economic and non-economic terms and conditions of employment during the course of the collective bargaining process. The requested information does not relate to management's positions on items that might be discussed in collective bargaining. Instead, it appears to relate exclusively to management's plans to maintain operations in the event that collective bargaining fails to produce a collective bargaining agreement without an intervening strike.
In her comments to the Commissioner, Ms. Olson disagreed with Mr. Kaspari's interpretation:
. . . [section 13.37] protects management positions on economic and non-economic items from disclosure in all circumstances except where such positions have been presented during collective bargaining. . . . The plain language of the statute includes management positions on any economic or non-economic items regardless of whether they are terms and conditions that are required to be bargained . . . Thus, even if [section 13.37] required that labor relations information be linked to management's bargaining proposals, as the IFO erroneously argues, the university's strike plan still satisfies the statutory definition as the university's position.
The Commissioner does not agree with Ms. Olson's characterization of the definition of labor relations data in section 13.37. This provision originated as a request for a temporary classification of data (see section 13.06) that the Commissioner approved in 1979. Some examples of the types of data presented to the Commissioner in support of the temporary classification include management collective bargaining positions not presented as formal offers during negotiations; salary plan alternative and salary cost information prepared for analyzing management and union alternatives and positions; drafts and salary plans not presented as formal offers; materials prepared for arbitration cases which describe and support management positions; management negotiations meeting notes; and management analysis of union proposals. Labor relations data become public pursuant to the general presumption once management presents them as part of the collective bargaining process or interest arbitration.
In essence, the labor relations provision allows management officials to withhold their collective bargaining positions from the union before the officials decide to make particular offers or compromises during negotiations. A strike plan does not seem to be the type of information a government entity would create to be used during a bargaining session for analyzing a union's position or preparing its own proposals and alternatives. Rather, it is data the entity creates to prepare itself in the eventuality that negotiations fail and a strike occurs.
Further, because management enters into separate contract negotiations with each employee union, the data protected by section 13.37 would not seem to include a strike plan that contains data about all the unions representing employees that work for the government entity. For these reasons, it does not appear that MSUM can deny access to the strike plan based on the labor relations section of section 13.37.
MSUM also cited the security information section as a basis upon which to deny access to the strike plan. Ms. Olson wrote:
During a strike, a college or university campus is likely to be more vulnerable to a variety of security concerns if, for no other reason, than there may be attempts to take advantage of the fact that fewer employees are available to deal with situations that arise. MSUM's strike contingency plan includes specific and strategic information about measures that university administrators utilize to protect the health and safety of persons and state-owned resources in the event of a work stoppage. These measures generally include, but are not limited to: communication protocols; protections for important resources and infrastructure such as power plants, heating facilities, computer servers and other information technology; plans to address safe and lawful campus access by students, employees and others, plans to ensure adequate food delivery and safe living conditions in dorms; and other related matters to ensure the continued operation of all vital functions.
MSUM believes that the public disclosure of its plan would likely lead to the substantial jeopardy of the persons and property it is charged to protect. If the university's strategies and plans were publicly available during a strike, protection measures and modes of communication could be easily disrupted; interference with deliveries and other actions that would substantially increase the vulnerability of persons and property to injury or damage.
The Commissioner has addressed the issue of security information in previous advisory opinions, such as 02-014:
Government personnel charged with assessing the vulnerability of public utility delivery systems must be granted the authority to protect the integrity of those systems. Accordingly, if those responsible persons within a government entity determine that the disclosure of any of the data [defined as security data in section 13.37, subdivision 1(a)] then those data may properly be classified as not public security information, pursuant to section 13.37.
The Commissioner wants to emphasize that, in the exercise of this discretion, a government entity must have reason to believe that public disclosure of such data would likely lead to substantial jeopardy. The entity cannot simply protect data from disclosure under section 13.37 on an arbitrary basis, but must base the determination on reasoned analysis.
Ms. Olson argues that MSUM's strike plan contains security information and cannot be released. The Commissioner has not seen the strike plan and, therefore, cannot comment specifically on the data contained therein. As previous advisory opinions discuss, government entities have discretion in these situations but should take care that their determinations are not arbitrary. Here, it seems possible that certain of the data in the strike plan are more likely to be security information than other data. For instance, if the plan includes a listing of which courses will or will not be taught, those data do not seem to pose a security risk, whereas a better argument could be made that a description about how computer server security will be handled is security information.
Thus, if the release of certain data in the strike plan would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury, MSUM can withhold those data.
Opinion:
Based on the facts and information provided, my opinion on the issues that Mr. Kaspari raised is as follows:
| Minnesota State University Moorhead (MSUM) did not comply with Minnesota Statutes, Chapter 13, when it denied access to contingency plans the University may have for strikes by any groups of employees at MSUM based on the labor relations provision of section 13.37.
However, MSUM can deny access to data in the strike plan based on the security information provision of section 13.37 if release of the data will be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury.
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Signed:
Dana B. Badgerow
Commissioner
Dated: March 27, 2007
