Facts and Procedural History:

The City of Golden Valley requested an advisory opinion from the Commissioner regarding whether data the City maintains is subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act), and, if so, the classification of such data.

The City provided the following summary of facts:

[T]he Police Department hosted a meeting with City Administration. The meeting was a standard weekly meeting of Police Department employees and attendance was voluntary. The Police Chief invited the City Manager, Deputy City Manager/Human Resources Director, and Equity and Inclusion Manager to the meeting. The purpose of the meeting was to discuss an all employee email from the Human Resources Department regarding healing circle opportunities for employees and responses to that email from Police Department employees. The meeting was held virtually and approximately 23 staff members attended.

During the meeting, staff discussed the City’s diversity, equity, and inclusion (“DEI”) plan as it relates to policing. … Throughout the conversation, staff referred to the discussion as an “open, honest conversation” about race equity and a “courageous conversation.”

One of the police officers in attendance (the “Officer”) recorded a video of the meeting using a personal cell phone. The recording shows the virtual meeting taking place via the City’s online meeting platform and includes employee names, video images, voice recordings, and typed chat comments. It also contains the Officer’s comments made while on mute as well as drafts of the Officer’s chat messages not shared with the group during the meeting. … The day after the meeting, the Officer uploaded the video to the City’s computer system and saved it in a folder that is accessible to all employees of the Police Department. …

The meeting was not open to the public or held in a public space. … The City did not intend to collect or maintain this data, rather, it was collected and maintained by an employee on their personal device without the knowledge, instruction, or authorization of their supervisors. Nevertheless, the data is currently maintained on the City’s computer system and the content of the recording relates to the City’s operations.

Issue:

Discussion:

Issue 1: Are data contained in a recording made by an employee on a personal device and uploaded to a government entity’s computer system “government data” subject to Minnesota Statutes, Chapter 13?

Government data are “all data collected, created, received, maintained, or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (See Minnesota Statutes, section 13.02, subdivision 7.)

In Advisory Opinion 08-028, the Commissioner opined that there are often situations when government employees will create government data using a personal device while acting in an official capacity. (See also Advisory Opinion 12-019.)

In Advisory Opinion 01-075, Commissioner also recognized that specific data maintained by a government entity may be personal data, rather than government data, and not subject to the requirements of Chapter 13. In considering such a scenario, the Commissioner stated, “What constitutes these personal data depends on what the [government entity] has authorized for personal use. Any such personal data are not government data because … 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.”

In its request to the Commissioner, the City wrote that its “computer use policies permit employees to make limited use of city-owned technology for personal matters.” Specifically, the City's policies state, “Outside of work time, employees may occasionally use the City’s technology for personal email, social media, and web browsing.” (Emphasis added.) The City’s policies also state that “[a]ll … documents, messages, files, data, postings, and other items received, sent, or created using City equipment is the property of the City.”

The City added:

In this case, the data was created on a personal device but currently exists on servers maintained and owned by the City. The employee created the data in their capacity as an employee and the data relates to the operation of government. Furthermore, the employee would not have had access to the data but for their employment. Accordingly, it is the City’s position that the data is government data notwithstanding the fact that it was recorded on a personal device.

The Commissioner agrees with the City. In assessing its own policies, the City has determined that the storage of the recording on its computer systems does not fall within the employee’s permitted ability “to make limited use of city-owned technology for personal matters.” Additionally, the City determined the employee was acting in an official capacity when creating the data, such data relate to the City’s operations, and the City is currently maintaining the data.

As a result, the data contained in the recording made by the City’s employee using their personal device and maintained on the City computer systems are government data subject to the Data Practices Act.

Issue 2: If the answer to the first issue is yes, what is the classification of the data in the recording?

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

Government data on individuals maintained because an individual is or was an employee of a government entity are classified by Minnesota Statutes, section 13.43. Section 13.43, subdivision 2 lists the types of personnel data classified as public and subdivision 4 provides that all other personnel data are private.

The Commissioner has previously opined that data that are not about an employee but about the work of government are not personnel data. (See Advisory Opinions 02-003 and 20-003.)

Additionally, the Commissioner has stated that Chapter 13 generally classifies data elements, not entire documents. (See Advisory Opinions 05-033, 12-006, and 14-006.)

In its request to the Commissioner, the City wrote:

The Officer created the recording in their capacity as an employee of the City, all of the individuals in the recording are City employees, the meeting was hosted by the Police Chief, and the content of the recording relates to employee work in the Police Department and the operation of government. Therefore, it is the City’s position that the recording was retained because the individuals in the recording are employees of the City. … It is the City’s position that … the recording is private personnel data.

The Commissioner did not review any of the data in question. The City will need to review the recording to determine whether specific data elements contained within the recording are classified as not public by Chapter 13 or any other applicable law.

Any data within the recording in which an employee is the identifiable subject are personnel data, pursuant to section 13.43. The City’s descriptions of data in the recording, such as employees’ individual comments and discussions that City staff described as “an ‘open, honest conversation’ about race equity and a ‘courageous conversation,’” suggests that some of it may be personnel data classified as private under section 13.43, subdivision 4. To the extent that the recording contains personnel data that are classified as public under subdivision 2, the City is obligated to provide access to such data, upon request.

Other data elements that are not about individuals and not classified under Chapter 13 or any other law would be presumptively public, pursuant to section 13.03, subdivision 1.

Opinion:

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

1. Data contained in a recording made by an employee in their official capacity on a personal device and uploaded to a government entity's computer system are "government data" subject to Minnesota Statutes, Chapter 13.
2. Based on the City of Golden Valley's descriptions, any data in the recording in which an employee is the identifiable subject are personnel data classified by 13.43. Any other data not on individuals are presumptively public, pursuant to section 13.03, subdivision 1, unless classified by another law.

Signed:

Alice Roberts-Davis
Commissioner

November 29, 2021