Facts and Procedural History:

On November 9, 2018, the Data Practices Office received an advisory opinion request from Richard R. Rosow, attorney for the City of Eden Prairie. In his letter, Mr. Rosow asked the Commissioner to issue an advisory opinion regarding classification of certain data the City maintains. The Commissioner invited David Brown, an attorney in the Hennepin County Attorney’s Office (HCAO) to submit comments; Mr. Brown did not.

According to the City:

In March 2018, the City received a complaint against an employee (“Employee”), a police officer employed by the City, related to potential employment misconduct. The City conducted an administrative investigation and prepared a report. As a result of the investigation, the City took disciplinary action against Employee, issuing a letter containing the final disposition of the action on July 25, 2018. The final disposition did not include termination of Employee’s employment. The July 25 letter, the investigation report, and additional data documenting the basis of the action will be referred to in this letter as the “Investigation File."

The City stated that the July 25 letter was the “final disposition” of the City’s disciplinary action related to the complaint. The City discussed the operation of Minnesota Statutes, section 13.43, and concluded that the Investigation File is public personnel data. The City further wrote to the Commissioner:

The Investigation File, however, has been collected by HCAO from the City for review and then sent by the HCAO to the McLeod County Attorney’s Office for that office to evaluate whether to criminally prosecute Employee. The McLeod County Attorney’s Office has, to my knowledge, not yet made a charging decision. Since the Investigative File has been collected by HCAO and provided by the HCAO to the McLeod County Attorney, it therefore can be considered active criminal investigative data, which is confidential. ... Chief Deputy County Attorney Brown told me that the City’s release of the Investigation File would jeopardize the active investigation and potentially result in the McLeod County Attorney declining to bring charges against the Employee on that basis alone, irrespective of the merits.

The City is aware of the Commissioner’s opinion in Advisory Opinion 96-017, which presented similar facts to the current situation. In that Opinion, the Commissioner determined that disciplinary data was public personnel data despite an ongoing criminal matter. While Opinion 96- 017 would appear to confirm that the Investigation File is public personnel data, the City seeks further guidance for several reasons. The HCAO has expressed its adamant position that the Investigation File is criminal investigative data. 

Issue:

Discussion:

Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)

Data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. The existence and status of a complaint against an employee are always public. (See section 13.43, subdivision 2(a)(4).) 

When there is a final disposition of disciplinary action, the disciplinary action, together with the specific reason(s) for and data documenting the basis of the action also become public. (See section 13.43, subd. 2(a)(5).) According to subdivision 2(b):

[A] final disposition occurs when the government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. ... In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement. [Emphasis added.]

According to Minnesota Statutes, section 13.82, subdivision 7, “… investigative data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility are confidential or protected nonpublic while the investigation is active”.

According to the City, there is a final disposition of the disciplinary action it took against the employee, and therefore the data in the Investigation File are public, as the specific reasons for and data documenting the basis of the discipline. However, the HCAO has taken the position that because it is considering bringing criminal charges against the employee, the data are now active criminal investigative data, and as such, are classified as confidential/protected nonpublic under section 13.82, subdivision 7.  

In Advisory Opinion 96-017, the Commissioner addressed this question:

The County raised concerns regarding the need to protect investigative data prior to the completion of a case. Clearly, the Legislature, in its enactment of Section 13.82, subdivision [7], recognized that law enforcement agencies, under certain circumstances, need to be able to withhold data from public disclosure in order to protect an active criminal investigation. The Commissioner recognizes that confusion exists regarding the interaction of the relevant provisions of Sections 13.43 and 13.82. However, the effect of the 1990 amendment to Section 13.43, subdivision 2, is that once a government entity makes its final decision regarding disciplinary action of a public employee, and once there has been a final disposition of that disciplinary action, those data are public, regardless of the possibility of any later proceedings, including court proceedings.

Had the County deferred making its final decision regarding disciplinary action against the [employee] until the criminal investigation was completed, there would be no question that the data are classified as not public criminal investigative data, pursuant to Section 13.82, subdivision [7]. However, the County made its final decision regarding disciplinary action prior to the criminal proceeding, and there has been a final disposition of that disciplinary action. Therefore, according to the language of Section 13.43, subdivision 2, the disciplinary data in question are public.

Further, the Minnesota Supreme Court concluded that personnel data that are public per section 13.43, subdivision 2(a)(5), remain public even though the same data are classified as confidential during an active maltreatment investigation under Minnesota Statutes, section 13.46, subdivision 3. (See Harlow v. State Dept. of Human Services, 883 N.W.2d 561, 568 (Minn. 2016)). The Court wrote:

We conclude that personnel data consisting of an employment investigation report that is reclassified as public upon the “final disposition of [an employee] disciplinary action” … remains public even though the data is duplicative of data in a maltreatment investigation that is classified as confidential. ... Two reasons support our conclusion. First, there is no federal law or temporary classification that provides that the data is not public. When there is a final disposition of a disciplinary action … the personnel data is reclassified as public and is available to the public. 

Second, our interpretation gives effect to the provisions of both statutes [per Minnesota Statutes, section 645.17.]. Specifically, the employment investigation data is public … and the data in the maltreatment investigation remains confidential. ... We acknowledge that it may seem anomalous to have data classified as public for one purpose, and confidential for another purpose. But we see nothing in the text of the [Data Practices Act] that prohibits this outcome.

In Harlow, the Minnesota Supreme Court did not address the interaction of sections 13.43 and 13.82. Nonetheless, the Court’s conclusion in Harlow is consistent with the Commissioner’s conclusion in Advisory Opinion 96-017, namely, that the same government data may simultaneously be classified as public for one purpose and confidential for another. 

Accordingly, the data in the Investigative File are public personnel data as maintained by the City, and confidential/protected nonpublic data at the HCAO/ McLeod County Attorney’s Office.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

 Pursuant to Minnesota Statutes, Chapter 13, data related to the final disposition of disciplinary action in the “Investigation File” are public personnel data, even though the same data are now part of an active criminal investigation.

Signed:

Matthew Massman
Commissioner

December 6, 2018