0201067266258This is an advisory opinion of the Commissioner of Administration. The Commissioner opined that the City of Minneapolis did not respond appropriately to a request for body camera data, classified by Minnesota Statutes, section 13.825 as nonpublic, that document the requester’s home and personal property. body camera datanonpublic dataaccess to nonpublic dataaccess to body camera dataeng266301266297515651<custom:Link urlOnly="true" type="Component" destination="tcm:36-743263" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2026-04-23T16:32:19ZThe Commissioner opined that the City of Minneapolis did not respond appropriately to a request for body camera data, classified by Minnesota Statutes, section 13.825 as nonpublic, that document the requester’s home and personal property. April 23, 2026; City of Minneapolis36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">X (a pseudonym used according to section 13.072, subdivision 4) asked the Commissioner for an advisory opinion regarding a request they made to the City of Minneapolis (City) for certain data the City maintains under Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">X provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This request arises from an incident in which officers from the Minneapolis Police Department forced entry into my home while I was on vacation with my family and recorded body-worn camera footage inside my private residence. I submitted multiple data requests to the City of Minneapolis seeking access to the footage and my requests were denied on the grounds that I was not physically present in the video and therefore was not considered a “subject” of the data under Minnesota statute 13.825.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>However, my request includes portions of the footage recorded inside my home in which no individual - including the officers - is visible. In these portions of the recordings, the bodyworn [sic] camera captures only the interior of my private residence and my personal property, but does not depict any person who could be considered a “subject” in the recording.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Minneapolis responded to the request for body camera data by stating:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>With exception for use of force causing harm, body camera video is nonpublic or private data, accessible only to people seen or heard in the video. Since you were not present for this event, the data can't be provided to you, per MN statute13.825.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This request will be closed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the advisory opinion request, the City provided these additional facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On August 7, 2024, Minneapolis Police Department (MPD) officers responded to a call [at X’s residence]. [X]’s neighbor had called to request a welfare check because [X, their child, and dog] had not been seen in at least two weeks, which was unusual. Two officers responded to the home with their body worn cameras (BWC) activated. Officers examined the scene outside the home for about 30 minutes. They knocked repeatedly at both doors but received no answer. They found mail piling up and spilling out of the mailbox and a food delivery box on the front steps. They also heard a buzzing sound coming from inside of the house. Officers spoke with 6-7 neighbors at different points during this time, who are visible and audible on the camera footage, with additional neighbors visible in the background. The neighbors expressed concern about the fact that [X, their child, and dog] had not been seen for multiple weeks. One of these neighbors had a phone number for [X]. An officer called the number multiple times, but the calls went straight to voicemail, indicating to the officer that the phone may be out of battery life. Officers also checked vehicles in the vicinity of the home to determine if these vehicles were registered to [X and their child]. At some point, a supervisor joined the two officers on the scene. Based upon all of the available information, a decision was made to force entry into the home to check on the welfare of the residents. Officers forced entry, conducted a brief search of the home lasting between 4 and 4.5 minutes, and determined that [X, their child, and dog] were not in the home. The three MPD officers are seen and/or heard throughout the time inside the home on each other’s body worn cameras. After approximately 4 minutes and 15 seconds inside, the officers exited the home and one officer spoke again with the neighbors. Another officer waited until a fourth person (not a sworn officer) arrived to board up the damage caused by the forced entry. This board up person is also visible and audible on the BWC. Officers left a card with the pile of mail before leaving the home.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Minneapolis respond appropriately to a request for body camera data, which are classified by Minnesota Statutes, section 13.825, that document the requester’s home and personal property?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Portable recording system data (commonly referred to as body camera video) are defined by Minnesota Statutes, section 13.825 as, “audio or video data collected by a portable recording system worn by a peace officer.” That section classifies data collected by a body camera as private or nonpublic, subject to limited exceptions not applicable to this opinion.</p> <p xmlns="http://www.w3.org/1999/xhtml">“Data not on individuals" are “all government data that are not data on individuals.” (Minnesota Statutes, section 13.02, subd. 4.)</p> <p xmlns="http://www.w3.org/1999/xhtml">“Nonpublic data” are defined as “data not on individuals made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.” (Minnesota Statutes, section 13.02, subd. 9.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data on individuals are defined as, “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.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.825, subdivision 4, provides access to body camera data:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) For purposes of this chapter, a portable recording system data subject includes the peace officer who collected the data, and any other individual or entity, including any other peace officer, regardless of whether the officer is or can be identified by the recording, whose image or voice is documented in the data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(b) An individual who is the subject of portable recording system data has access to the data, including data on other individuals who are the subject of the recording. If the individual requests a copy of the recording, data on other individuals who do not consent to its release must be redacted from the copy. The identity and activities of an on-duty peace officer engaged in an investigation or response to an emergency, incident, or request for service may not be redacted, unless the officer's identity is subject to protection under section 13.82, subdivision 17, clause (a).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, the City supported its decision to deny access to the requested body camera data:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Section 13.825 of the Minnesota Government Data Practices Act provides a unique, format specific classification for a particular type of data – “portable recording system” data, more often called body worn camera (“BWC”) ….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>First, subdivision 4(a) identifies who qualifies as a subject of BWC: the peace officer wearing the camera and any person (including peace officers) whose voice or image is documented in the footage. It does not matter whether the person is identified in the BWC footage; it matters only that the individual can be seen or heard in the BWC. Homes and personal property are mentioned nowhere in subdivision 4(a). As a result, they cannot be the subjects of BWC.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>However, even if homes or personal property could be subjects of BWC, [X] still was properly denied access to the BWC in question because subdivision 4(b) is even more specific than subdivision 4(a). Subdivision 4(b) specifies who has access to BWC data and it provides that only “an individual who is the subject” has access (emphasis added). Individual “means a natural person.” Minn. Stat. § 13.02, subd. 8. As a result, only the natural persons who are seen or heard in the BWC have access to that footage. The legislature could have included in subdivision 4(b) a right for owners to access BWC documenting their property, but the legislature did not do so and no such right should be read into the statute.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that section 13.825 establishes an alternative access scheme to the rest of the Data Practices Act. However, she does not agree with the conclusion the City reached in its analysis. Instead of arguing that X is not the subject of nonpublic data, the City argues that only individuals that are seen or heard may have access to body camera video. This is too narrow of a reading and impermissibly limits access by subjects of nonpublic data not on individuals.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.825, subd. 4(a) states that data subject “includes,” the subjects listed in that provision. It does not limit subjects to those identified. The Minnesota Supreme Court has held that “[t]he word ‘includes’ is not exhaustive or exclusive.” (See <em>LaMont v. Indep. Sch. Dist. No. 728</em>, 814 N.W.2d 14, 19 (Minn. 2012).) In paragraph (a), the Legislature identified additional data subjects who would have otherwise been considered incidental (see Minnesota Statutes, section 13.02, subd. 8) and would not have had access rights in other, non-body camera data contexts. Paragraph (a) serves as an exception to that general rule. Additionally, the language in 13.825, subd. 4(a) refers to “any other individual or entity,” which contradicts the City’s position.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.825, subd 4(b) provides access rights for data on individuals but does not, as the City contends, say that “only” individuals are entitled to access. Here again, the Legislature needed to specify access rights because a data subject in a body camera video is allowed to access (i.e., view or inspect) private data on other data subjects. A data subject is not allowed to access private data on others in almost every other data practices context. Thus, the provision does not limit access rights to only individual data subjects.</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Legislature had intended for body camera data to be considered only data on individuals, it would have defined the data in that way and classified the data only as private. The City must give effect to the nonpublic classification by determining whether there is a subject of nonpublic data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The definition of the nonpublic classification provides that it is, “accessible to the subject, if any, of the data.” While the City did not provide any analysis on how it would determine whether a requester is a subject of nonpublic data, the Commissioner believes the situation here is illustrative. The City police department received a call concerning X’s welfare. The police forced entry into X’s house, walked through the house to look for X, their child, and dog, contacted a company to board up the window, and closed the call. A portion of the requested videos includes only on-duty, non-undercover peace officers and images of X’s residence. Therefore, in these specific circumstances, X, as the owner and resident of the home depicted in the described videos, should have access to the 4-4.5-minute portion of the videos that portray only the search of the home and property but no other individuals except for on-duty officers. To decide otherwise would be to endorse an interpretation of 13.825 that allows law enforcement to create and maintain a collection of videos to which no one outside of the agency would have access.</p> <p xmlns="http://www.w3.org/1999/xhtml">In concluding its remarks, the City wrote, “if the legislature intended for Chapter 13 to provide access rights for persons whose homes or personal property are depicted in BWC, the Legislature left many critical questions entirely unanswered.” The Commissioner and the City are in full agreement. Many critical questions about implementing the classifications of section 13.825 have been left unanswered by the language and the Commissioner acknowledges that this advisory opinion provides an answer to only one question.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is acutely aware of the challenges that government entities and requesters face related to the administration of body camera data. Given the number of issues raised to the Data Practices Office on a weekly basis, it is her view that the section is overdue for reconsideration. Instead of resolving over time, these issues have compounded since the Legislature enacted the section in 2016, which has led to inconsistent application and widespread confusion. Thankfully, the Legislature now has a wider range of law enforcement agencies with experience using body cameras that can inform discussions about this section’s operations. She encourages the Legislature to revisit the policy and practical considerations of section 13.825 to determine whether revision and additional guidance are appropriate.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Minneapolis did not respond appropriately to a request for body camera data, classified by Minnesota Statutes, section 13.825 as nonpublic, that document the requester’s home and personal property.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">April 23, 2026</p>7432633785802665122671762026-04-24T14:29:50Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner opined that data relating to the complaints and charges about a former police chief that were raised in an employee survey were public government data under Minnesota Statutes, section 13.43 subd. 2(f), except for any data that identified other government employees, because the former chief resigned while the charges were pending.public officialpersonnel datacomplaintresignationsettlementemployee surveypublic dataeng266293323425<custom:Link urlOnly="true" type="Component" destination="tcm:36-733434" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2026-03-17T20:20:02ZA city asked about the classification of data about its former police chief. The data involved comments received in response to an employee survey that raised concerns about the chief, who ultimately resigned after the city placed him on administrative leave in response to the concerns raised in the survey comments. The city argued that the data were private personnel data under Minnesota Statutes, section 13.43. The Commissioner determined that the data received in response to an employee survey were complaints and charges against the police chief, and were public government data under Minnesota Statutes, section 13.43, subd. 2(f), as the chief resigned while the complaints and charges were pending.March 17, 2026; City of Rosemount36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The City of Rosemount asked the Commissioner for an advisory opinion regarding the classification of certain data the City maintains under Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In summer 2025, the City conducted a city-wide employee survey. Most of the questions were multiple choice and asked the employee to respond whether they strongly agreed, agreed, or disagreed with particular statements. The City also asked three open-ended questions:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Question No. 13: What aspects of the organization’s culture do you appreciate most?</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Question No. 14: What suggestions do you have for improving the work environment?</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Question No. 15: Do you have any additional comments, concerns, or suggestions to help improve your experience at the organization?</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The answers to these three questions generated over 80 pages of comments from police department employees (specifically 6 pages for Question 13, 26 pages for Question 14, and 55 pages for Question 15). The most common subject of the comments were criticisms/concerns/complaints/negative comments . . . about [the former Rosemount police chief]. . . .</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Because of the survey results, for various reasons, and after consultation with legal counsel, the City decided to proceed with separation of employment of [the former police chief] rather than proceed with a formal investigation or other alternative. The City communicated this intent to [the chief] and placed him on paid administrative leave. . . . [T]hereafter the parties negotiated and executed a separation agreement. [The chief] signed the agreement on November 10, 2025, and the agreement was fully executed when the City signed on December 3, 2025.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data maintained by a city that are related to the resignation of a public official?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Personnel data are classified by Minnesota Statutes, section 13.43 and are defined as “government data on individuals maintained because the individual is or was an employee of . . . a government entity.” If data are personnel data, then the presumption that the data are public is reversed. Section 13.43, subdivision 4 classifies personnel data as private if the data are not already classified as public in subdivisions 2 and 3.</p> <p xmlns="http://www.w3.org/1999/xhtml">Generally, only the existence and status of a complaint or charge against an employee are public data unless there is a final disposition of disciplinary action. (See section 13.43, subdivision 2(a)(4) and (5)).</p> <p xmlns="http://www.w3.org/1999/xhtml">However, section 13.43, subdivision 2(e)(5)(iii) identifies certain employees at municipal government entities as “public officials” and classifies specific disciplinary data about the public official as public government data if certain conditions are met.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subdivision 2(f) states that data relating to a complaint or charge against an employee who is identified under subdivision 2(e)(5) become public when:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending; or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, Section 13.43, subdivision 7a addresses employee suggestion data, stating:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Personnel data includes data submitted by an employee to a government entity as part of an organized self-evaluation effort by the government entity to request suggestions from all employees on ways to cut costs, make government more efficient, or improve the operation of government. An employee who is identified in a suggestion shall have access to all data in the suggestion except the identity of the employee making the suggestion.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has addressed employee survey data in a previous advisory opinion, explaining that responses to surveys that identify government employees are personnel data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267489" target="_blank">Advisory Opinion 14-012</a>.) Employee survey responses that are not identifiable to an employee are not data about an individual and therefore cannot be personnel data. Those responses that are not data on individuals are presumptively public data.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, the City stated it believed the data about the former police chief were classified as private personnel data under section 13.43 for two reasons. First, the City maintained that, under section 13.43, subd. 7a, “[T]he employee survey data on [the former chief] is private data and remains private data following his resignation.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Second, the City suggested that the considerations of section 13.43, subd. 2(e) regarding disciplinary data about public officials was not applicable. The City wrote that it “did not conduct a formal investigation and did not at any point decide to proceed with such an investigation.” The City added that “[t]here was not a complaint or charge here, as is contemplated (but not defined) by the data practices act [sic].”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees that all of the survey data are classified as personnel data under section 13.43. As established in <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267489" target="_blank">Advisory Opinion 14-012</a>, any de-identified survey responses maintained by the City are not personnel data under section 13.43. Rather, those survey responses are presumptively public data not on individuals. However, any data that identify an employee, including those data that identify the former police chief, are personnel data. The classification of the personnel data in the survey responses will depend on whether those data fall under a category of public data identified under section 13.43, subd. 2.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2(f) states that data related to a complaint or charge against a local public official become public if “the complaint or charge results in disciplinary action or the employee results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act does not define “complaints or charges.” Consistent with Minnesota Statutes, section 645.08, past advisory opinions looked at the common usage and definitions for these terms, finding that what may constitute a complaint or charge is broad. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267769" target="_blank">Advisory Opinions 04-064</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267412" target="_blank">97-003</a>).</p> <p xmlns="http://www.w3.org/1999/xhtml">The 5th Edition of the American Heritage Dictionary defines a “complaint,” in part, as an “expression of pain, dissatisfaction, or resentment” and a “cause or reason for complaining; a grievance.” It also defines “charge” as “to make a claim of wrongdoing against; accuse or blame” and “to put the blame for; attribute or impute.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its advisory opinion request, the City characterized the comments in the survey about the former police chief as “criticisms/concerns/complaints/negative comments.” (Emphasis added). The City’s own description of the survey data is that the comments contain “complaints” about the former police chief. Further, the City describing the comments as criticisms, concerns, and negative comments suggests these data are expressions of dissatisfaction about the former chief and are complaints or charges under the common usage of those terms.</p> <p xmlns="http://www.w3.org/1999/xhtml">Contrary to the City’s argument, section 13.43, subd. 2(f) does not require a formal personnel investigation for the public classification to apply. Rather, subdivision 2(f) requires only that there is a complaint or charge, and that the complaint or charge is “pending” when the public official resigns or is terminated for the data to become public. Here, “[b]ecause of the survey results,” the City consulted with legal counsel, placed the former police chief on administrative leave, and then sought a separation agreement with him. The chief agreed to resign from his employment as part of that agreement. The concerns raised in complaints from the employee survey were not resolved at the time of this resignation. Therefore, the complaints raised within the employee survey were pending at the time of the chief’s resignation, and all data related to those complaints, besides identifying data on other employees, are public under section 13.43 subd. 2(f).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that when a local public official signs a settlement agreement that releases the government entity from any claims relating to conduct that is the subject of a complaint or charge, data relating to that complaint or charge are public. (See section 13.43, subd. 2(f)(2).) If the settlement agreement at issue here released claims related to the complaints in the survey results, then data related to complaint are classified as public under that provision, as well.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">All data relating to the complaints and charges about the former police chief that were raised in the employee survey are public government data under Minnesota Statutes, section 13.43 subd. 2(f), except for any data that identify other government employees, because the former chief resigned while the charges were pending.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 17, 2026</p>7334342668732666302667202665572665162664062672102026-03-19T05:00:39Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner opined that data about an elected school board member in an investigative report concerning the member’s alleged misconduct were presumptively public because the school district had not made an affirmative determination that its elected officials were “employees” for the purposes of the Data Practices Act’s classifications of personnel data under section 13.43.elected officialspersonnel datapublic dataeng266264266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-727779" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2026-02-25T19:57:50ZA school district asked about the classification of data it maintained in an investigative report about the alleged misconduct of a school board member. The district noted that it had not made a clear determination on whether it considered its elected officials to be employees for data practices purposes. The Commissioner explained that a government entity is in the best position to determine whether its elected officials are employees for data practices purposes. If the officials are employees, then section 13.43 applies to data about them and the applicable classifications follow. If the officials are not employees, then section 13.43 does not apply to them and data are presumptively public. The Commissioner noted that entities must affirmatively determine whether its elected officials are employee, and the decision cannot be made directly in response to a data request. The Commissioner observed the district had not designated its elected officials as employees, which meant the data in the investigative report were presumptively public. February 25, 2026; Independent School District No. 831, Forest Lake Area Schools36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Independent School District No. 831, Forest Lake Area Schools (District), asked for an advisory opinion regarding the classification of data about elected school board members under Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A citizen has made a data request to the School District seeking “all public data concerning the hiring or retention of a law firm or individual to conduct an investigation on behalf of [the School District] as authorized during the May 15, 2025 School Board meeting.” Among other categories, the data request specifically seeks: “[a]ny public reports, summaries, or findings generated as a result of the investigation.” The investigation authorized by the School District’s governing Board concerned alleged misconduct of a Board member. At the time of the data request, the investigation was ongoing, and no report existed; however, a report has since been completed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The School District seeks guidance on the proper standard for determining the classification of data regarding a Board member. …</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data about an elected school board member in an investigative report concerning the member’s alleged misconduct?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Personnel data are classified under Minnesota Statutes, section 13.43. Personnel data are defined as “government data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Past advisory opinions have established that a government entity must determine whether its elected officials are “employees” for the purposes of the Data Practices Act’s classifications under section 13.43. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267232" target="_blank">16-001</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267335" target="_blank">03-011</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267742" target="_blank">02-013</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267669" target="_blank">01-039</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267573" target="_blank">95-041</a>.) The Commissioner’s consistent analysis in these opinions is that the government entity is in the best position to make this determination.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the Minnesota Court of Appeals agreed with this approach in a non-precedential opinion. (See <em>Krout v. City of Greenfield</em>, No. A11-1200, 2012 WL 1253090 (Minn. Ct. App. Apr. 16, 2012).) Specifically, the Court wrote, “Allowing government units to decide whether their elected officials are employees also comports with the fundamental purpose of the [Data Practices Act].”</p> <p xmlns="http://www.w3.org/1999/xhtml">If an elected official is not an employee for Data Practices Act purposes, then data about that official are presumptively public. If an elected official is an employee, then only the personnel data about that official identified under section 13.43, subdivision 2 are public. All other personnel data about the elected official are classified as private under section 13.43, subdivision 4.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In this situation, neither the governing board nor members of the School District’s administration have, to date, made any determination or taken any affirmative action on whether board members are “employees” for purposes of Minn. Stat. § 13.43. The School Board has not adopted a resolution, and there is no documentation reflecting any determination or previous action by the Superintendent, Human Resources staff, the responsible authority, or any other District official regarding the “employee” status of board members under the MGDPA.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As noted in past advisory opinions, government entities are in the best position to determine whether elected officials are employees for data practices purposes, and the Commissioner declines to dictate specific processes for how those determinations must be made. Each government entity can establish its own procedure to decide whether its elected officials are employees.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, the processes and procedures an entity uses to make such determinations cannot be done on an <em>ad hoc</em> basis. Rather, a government entity must affirmatively decide to designate its elected officials as employees, if it chooses to do so, and the entity should clearly document that decision. An entity cannot rely on past practices or other similar arguments to determine that an elected official is an employee in order to classify data about the official as private under section 13.43 upon receiving a data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">If a government entity has not made the affirmative determination that its elected officials are employees for data practices purposes, then data about the official would fall under the Data Practices Act’s public presumption unless another statutory section, temporary classification, or federal law applies.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the District has not acted to designate the elected school board members as employees for data practices purposes. Additionally, no other section in the Data Practices Act classifies complaints or investigative data related to misconduct allegations against an elected school board member as private or confidential data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, it is the Commissioner’s opinion that the data in the investigative report concerning the elected school board member’s alleged misconduct are presumptively public.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The data about an elected school board member in an investigative report concerning the member’s alleged misconduct are presumptively public because the school district has not made an affirmative determination that its elected officials are “employees” for the purposes of the Data Practices Act’s classifications of personnel data under section 13.43.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">February 25, 2026</p>7277792672242665872026-02-27T06:00:44Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner opined that the city did not respond appropriately to a data request where the city maintained that the data were privileged communications between a third-party individual and that individual's attorney. The Commissioner noted section 13.393 exempts attorney data from the requirements of the Data Practices Act; however, those exemptions apply to communications between only the city and its attorney and do not extend to data that the city believes may be privileged between others.attorney-client privilegepresumptively publicpublic dataattorney dataeng266394266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-722852" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2026-02-04T20:13:03ZA member of the public asked whether a city responded appropriately to a request for documents that an individual gave to city council members during a council meeting. The city maintained that the data its council members received were privileged communications between a third-party individual and that individual's attorney. Therefore, the city denied the requester access to the data on the basis of the attorney-client privilege. The Commissioner noted section 13.393 exempts attorney data from the requirements of the Data Practices Act, including documents protected by attorney-client privilege. However, those exemptions apply to communications between only the city and its attorney and do not extend to data that the city believes may be privileged between others. Therefore, the city did not respond appropriately to the request because the requested data appeared to be presumptively public.February 4, 2026; City of Emily36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Nate Dybvig (Dybvig) asked for an advisory opinion regarding his right to gain access to data maintained by the City of Emily (City), under Minnesota Statutes, Chapter 13 (Data Practices Act). The Emily City Attorney submitted comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">At an Emily City Council meeting on September 9, 2025, a member of the public, Steve Carlson (Carlson), appeared during the public comment period to discuss his concerns about alleged financial irregularities related to a proposed local mining project. Carlson also gave packets of documents related to his concerns to each council member and the mayor. Dybvig’s opinion request noted that Carlson also confirmed he previously delivered a copy of the document packet to city staff.</p> <p xmlns="http://www.w3.org/1999/xhtml">On October 22, 2025, Dybvig submitted a data request to the City for a copy of the documents that Carlson gave to city council members. The City responded on October 29, 2025, stating it would not provide Dybvig with access to the requested data. In a letter to Dybvig, the City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The data that you request is classified as data not on individuals – Non-public Data, as defined in Minn. Stat. § 13.02, Subd. 9. This is because the information you seek in your Data Request is protected by the confines of Minn. Stat. § 595.02, Subd. 1(b).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Dybvig contacted the City on October 30, 2025, to ask for further clarification. He noted that the requested data were delivered to the city council during an open meeting and the cited statutory sections did not appear to be applicable. The City did not offer additional information in response to Dybvig’s communication.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Emily respond appropriately to a request submitted on October 22, 2025, for data in documents that a member of the public provided to the mayor and city council members during a September 9 meeting?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">If a government entity denies access to data due to a not public classification, then the entity is obligated to inform the requester of the specific statutory section, temporary classification, or provision of federal law that allows it to withhold the requested data. (Section 13.03, subd. 3(f).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.02, subdivision 9 states, “‘Nonpublic data’ are data not on individuals made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 595.02, subdivision 1(b) establishes the attorney-client privilege as it relates to witness testimony, stating, “An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client’s consent.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Meanwhile, Minnesota Statutes, section 13.393 states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for a government entity shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Past advisory opinions have clarified that section 13.393 does not classify data. Rather, the section exempts data created, collected, maintained, or disseminated by government attorneys from the Data Practices Act’s requirements when those data are subject to other statutes, rules, or professional standards governing attorneys’ work and conduct, such as the attorney-client privilege. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-549122" target="_blank">22-007</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267599" target="_blank">12-017</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267516" target="_blank">05-009</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <em>City Pages v. State of Minnesota</em>, 655 N.W.2d 839 (Minn. Ct. App. 2003), the Minnesota Court of Appeals addressed the interaction of the Data Practices Act and the attorney-client privilege in the context of data contained in a law firm’s billing records maintained by a government entity. The Court cited section 595.02, subd. 1(b) as the statutory basis of the attorney-client privilege. However, the Court also relied upon the classic explication of the privilege when considering its scope:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Kobluk v. University of Minnesota</em>, 574 N.W.2d 436 (Minn. 1998) (citations omitted).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Court then wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Because billing records are not “communication made by the client,” they come under the privilege only if they are “attorney’s advice given [on a client’s communication] in the course of professional duty.” …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Here, we hold that the billing records are not protected in their entirety by the attorney-client privilege: much of the information in them is not confidential, and much of it would have been disclosed regardless of the existence of the privilege. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Certainly, the public has a right to at least some of the government data contained in the billing records, and the attorney-privilege protects only data that renders legal advice and that might not have been disclosed absent the privilege.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the City disagreed that it violated the Data Practices Act, noting it had denied Dybvig access to data on the basis of attorney-client privilege. The City also enclosed a letter the City Attorney previously sent to the Commissioner, which disputed an argument Dybvig made suggesting any attorney-client privilege was waived when Carlson provided the documents to the city council.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner’s understanding of the City’s position is that the requested data are not privileged communications between the City Attorney and City officials. Rather, this is a unique situation where the City received documents it believed were privileged communications between a third-party individual not related to the City and that individual’s attorney. Under the City’s argument, the attorney-client privilege between that third party and their attorney was not waived when Carlson obtained those documents and disclosed them to the mayor and city council members at the meeting on September 9. Therefore, the City was obligated to withhold access to preserve the attorney-client privilege on behalf of the other parties.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City’s reliance on the fact that the requested data appear to be privileged between an individual unrelated to the City and that individual’s attorney is not a sufficient reason to withhold access to data in this situation.</p> <p xmlns="http://www.w3.org/1999/xhtml">As the Court of Appeals noted in <em>City Pages</em>, the attorney-client privilege typically protects “communications made by the client,” but it may apply to other communications “only if they are ‘attorney’s advice given [on a client’s communication] in the course of professional duty.’”</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Carlson provided data directly to the mayor and city council members. Therefore, the requested data were not communications made by City officials to its attorney nor were they communications from the City attorney rendering legal advice to the City officials. As a result, the requested data are not attorney-client privileged communications between the City and its attorney, and section 13.393 does not exempt the data from the Data Practices Act’s requirements.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the plain language of section 13.393 does not allow a government attorney to extend the section’s exemptions when a government entity receives data it believes may be privileged between other parties. Thus, the City cannot rely on section 13.393 to withhold access even though it believes Carlson was not authorized to disclose data in documents that would be privileged between other parties.</p> <p xmlns="http://www.w3.org/1999/xhtml">It is the Commissioner’s opinion that the attorney-client privilege, with its statutory basis in section 595.02, subd. 1(b) and applied through section 13.393, is not applicable to the documents that Carlson gave to the mayor and city council members. The City cannot rely on section 13.393 or section 595.02, subd. 1(b) to withhold access to the requested data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, section 13.02 provides definitions of terms used throughout the Data Practices Act, and the section does not classify data. The City citing section 13.02, subd. 9 as the basis to withhold data in response to Dybvig’s request was not appropriate.</p> <p xmlns="http://www.w3.org/1999/xhtml">As a result, the requested data in the documents are subject to the public presumption. The City was obligated to provide Dybvig with access to the requested data unless a different statutory section or federal law classified the data as not public.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has a final note: The fact the City accepted and continued to maintain the documents Mr. Carlson provided — even though those documents appeared to be privileged between a third-party individual and that individual’s attorney — complicated the situation at hand. A government entity that receives documents it believes are privileged between other individuals should consider whether it must maintain those data for any longer than necessary, especially if they are transitory data. Government data that are transitory in nature and not part of an official record do not need to be retained for any specific length of time.</p> <p xmlns="http://www.w3.org/1999/xhtml">A practical solution for an entity finding itself in this situation may be to promptly return the privileged documents to the applicable individual or attorney upon determining it should not have received the documents. Alternatively, an entity could destroy any copies of the documents it believes it was not authorized to receive so long as those documents are not official records under Minnesota Statutes, Section 15.17 or subject to a pending data request.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Emily did not respond appropriately to a request submitted on October 22, 2025, for data in documents that a member of the public provided to the mayor and city council members during a September 9 meeting. The data are presumptively public unless another specific statutory section or provision of federal law classify the data otherwise.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">February 4, 2026</p>7228522662852667212663992665282026-02-06T06:00:45Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner concluded that Met Council did not respond appropriately a reporter’s request for data about an investigation into complaints or charges against a former Metro Transit Police Chief.public officialpersonnel datapublic dataresigneng266293266272<custom:Link urlOnly="true" type="Component" destination="tcm:36-719953" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2026-01-16T16:44:40ZA reporter asked about Met Council’s response to a request for data about a former Metro Transit Police Chief. The reporter requested access to public data about an investigation into complaints or charges against the chief. Due to a recent legislative change, the duly appointed chief law enforcement officer of the Metro Transit is a “public official” as defined in Minnesota Statutes section 13.43, subd. 2(e)(5) and therefore, data about a complaint or charge against the chief is classified public because he resigned while the complaint or charge is pending. Therefore, Met Council did not respond appropriately to the reporter’s request.January 16, 2026; Metropolitan Council36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Ryan Raiche, a reporter for KSTP-TV, requested an opinion regarding the Metropolitan Council’s (Met Council) response to requests for government data made under Minnesota Statutes, Chapter 13 (Data Practices Act). Met Council provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">KSTP-TV provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In September 2024, the Met Council announced that [the Police Chief] was no longer with the department. At the time, KSTP-TV requested all data, including any prepared reports, relating to that investigation. The Met Council denied our request because under state law – at the time – the Metro Transit Police Chief was not considered a “public official.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>That all changed this last legislative session after our reporting on the matter. Lawmakers added the Metro Transit Police Chief to the list of “public officials.” The Met Council even lobbied for this change.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Once the law took effect in August 2025, KSTP-TV made the request again:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>“In light of new legislation which changes the classification of certain data on the police chief at Metro Transit, KSTP-TV is requesting again all data, including any prepared reports, relating to the investigation into former Metro Transit Police Chief Earnest Morales.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Despite lobbying for the change in the law, the Met Council denied the request again, saying the new law does not apply retroactively. KSTP-TV appealed that decision based on 13.03 subdivision 9. A Met Council lawyer responded with the attached letter – denying me again.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Metropolitan Council respond appropriately to a request submitted on August 5, 2025, for all public data related to a personnel investigation involving the former Metro Transit Police Chief?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Personnel data are classified by Minnesota Statutes, section 13.43. Personnel data means “government data on individuals maintained because the individual is or was an employee of… a government entity.” Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other personnel data as private.</p> <p xmlns="http://www.w3.org/1999/xhtml">Generally, only the existence and status of a complaint or charge against an employee are public data, unless or until there is a final disposition of disciplinary action. (Section 13.43, subd. 2(a)(4) and (5).) For employees who are “public officials,” however, data relating to a complaint or charge are public if certain conditions are met. (Section 13.43, subd. 2(e) and (f).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In 2025, the Minnesota Legislature amended section 13.43, subdivision 2(e)(5), by adding certain individuals employed by Met Council to the definition of "public official," including the chief law enforcement officer of the Metro Transit Police Department.  Paragraph (f) of the same subdivision states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Data relating to a complaint or charge against an employee identified under paragraph (e), clause (5), are public only if:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending, or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, Minnesota Statutes, section 13.03, subdivision 9 states, “unless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data’s classification at the time it was collected, created, or received.” Meanwhile, Minnesota Statutes, section 645.21 states, “no law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267801" target="_blank">Advisory Opinion 95-039</a>, a University of Minnesota faculty member signed an agreement in 1991, as a result of a complaint from a student. In 1993, the Legislature amended section 13.43, subdivision 2, changing the public classification of settlement agreements from those relating to “administrative or judicial proceedings” to the current language – “any dispute arising out of the employment relationship.” The faculty member asserted, though the University could not confirm, that he had been promised confidentiality when signing the agreement. The Commissioner wrote, “Although this kind of agreement may have been private at the time it was entered into, the Legislature, in its 1991 enactment of Section 13.03, subdivision 9, provided” that the classification is determined by the statute existing at the time of the request. Therefore, the settlement agreement was public.</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267342" target="_blank">Advisory Opinion 96-011</a>, a data subject had been a patient at a state hospital at various times in the 1960s. Subsequently, the Legislature classified certain directory information about public hospital patients as public. The data subject objected to the release of that data. The Commissioner concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>K objects to DHS treating any of the data on the index card as directory information. One basis for K’s objection is that because the data were collected/created prior to August 1, 1975, and the data were treated as not public pursuant to Section 246.13, the data cannot ever be public data. K’s reasoning is understandable. K believed the assurances made at the time of K’s release from involuntary commitment, that the data were private and confidential.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>However, the Legislature, on an annual basis, enacts new legislation, and amends and repeals existing statutes. Annually, the Legislature alters the classification of various types of government data. As evidence of its intent, to maintain ongoing control over classification of data, the Legislature enacted Section 13.03, subdivision 9.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, Met Council wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At no point in time, however, was [the former Chief] a public official under Minnesota Statutes section 13.43, subd. 2(e). The statutory language only applies to the person in the role of the Chief of Police after the effective date [of the 2025 legislative change]. Prior to the effective date, the Chief of Police was not a public official. As an employee who was not a public official, the only public data related to a complaint or charge is the existence and status of the complaint, i.e., there was a complaint, and the investigation is closed. The Council is not permitted to provide further data under state law.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Minnesota Statutes 13.03, subdivision 9 also does not apply in this situation and it is not a clear and manifest intent of the Legislature for retroactively applying the 2025 amendment. First, subdivision 9 addresses changes in the classification of data. But here, the classification of data has not changed: Data about public officials was and remains classified as public. Instead, the amendment changes the definition of who is a public official. While that has the effect of changing the classification of data for someone who currently or in the future serves in one of those roles, it does not apply to someone who is not in that role (see plain language analysis above). Subdivision 9 does not apply. Second, the Legislature added section 13.03, subdivision 9 in 1990. The public official exception was not added until five years later and then only applied to “the head of a state agency and deputy and assistant state agency heads.”1995 Minn. Laws Ch. 259 (S.F. 1279). A 1990 amendment is not clear and manifest intent of retroactivity for a 2025 amendment particularly where so many changes to the statutory section have occurred between the two enactments.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees. The Legislature’s clear and manifest intention regarding determining data classification is stated in section 13.03, subd. 9; unless otherwise expressly provided, classification is determined by the language of the law existing at the time of the request, “regardless of the data’s classification at the time it was collected, created, or received.” If the Commissioner were to accept Met Council’s argument regarding retroactivity, section 13.03, subd. 9 would be rendered meaningless. An entity would be obligated to research the legislative history of a provision each time it needed to determine the classification of responsive data, instead of relying on the plain language of the statute. This is exactly the problem section 13.03, subd. 9 seeks to remedy.</p> <p xmlns="http://www.w3.org/1999/xhtml">Because section 13.43 does not expressly state otherwise, the relevant inquiry to determine the classification of the data at issue is:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Does Met Council maintain “data relating to a complaint or charge against an employee identified under [subdivision 2] paragraph (e), clause (5)”?</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Did that employee resign while the complaint or charge was pending?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">At the time KSTP-TV made the August 2025 request, section 13.43, subdivision 2(e)(5) identified the chief law enforcement officer of the Metro Transit Police as a “public official.” There was a complaint or charge against him, and he resigned while the complaint or charge was pending. Because the classification of data are determined at the time of the request, Met Council did not respond appropriately to KSTP-TV’s data request by denying access to all of the requested data.</p> <p xmlns="http://www.w3.org/1999/xhtml">As a final note, in its comments, Met Council raised important issues related to due process and employee decision-making during the complaint process. The Commissioner has commented on those concerns in the prior opinions cited above. In making the recent changes to section 13.43, the Legislature did not discuss how changes in determining classification would impact public officials who resigned prior to the change. The Commissioner encourages entities that share these concerns to raise them for the Legislature’s consideration.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Metropolitan Council did not respond appropriately to a request submitted on August 5, 2025, for data related to a personnel investigation involving the former Metro Transit Police Chief by denying access to all data. Data “related to the complaint or charge” are public, except for data on other employees, because the Chief resigned while the complaints or charges were pending, and section 13.43, subd. 2(e)(5)(v) identifies the Metro Transit Police Chief as a public official.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 16, 2026</p>7199532665162664062668732672102665952026-01-19T06:00:28Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner concluded that Itasca Medical Care (IMCare), a county-based purchasing plan, was subject to the requirements of Minnesota Statutes, section 13.46 because it contracted with the Minnesota Department of Human Services to perform a government function.government contractsprivatizationgovernment functionwelfare datawelfare systemeng266279266575<custom:Link urlOnly="true" type="Component" destination="tcm:36-712484" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-11-13T16:38:35ZA county-based purchasing plan asked whether it was subject to the requirements of a Minnesota Statutes, section 13.46 after receiving a request from a media member for data it maintained. The purchasing plan denied the requester access, stating that section 13.46 classified the data as not public. However, the requester disputed whether the purchasing plan was part of the "welfare system" under the definitions in section 13.46. The Commissioner concluded that the purchasing plan was subject to the requirements of section 13.46 because it contracted with the Minnesota Department of Human Services to perform a government function. Therefore, the purchasing plan met the definition of “welfare system” as defined in section 13.46, subdivision 1(c).November 13, 2025; Itasca Medical Care36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Itasca Medical Care (IMCare) asked for an advisory opinion regarding whether it was subject to the requirements of a specific section of Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">IMCare provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>IMCare is organized as a county-based purchasing entity organized under Minn. Stat. § 256B.692 for the purposes of providing health insurance to Medicare- and Medicaid-eligible residents of Itasca County. It is also a Minnesota Health Care Program administered by Itasca County Health &amp; Human Services. IMCare has contracts with the [Minnesota Department of Human Services] and the Centers for Medicare and Medicaid Services.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Section 6.1.22 of IMCare’s contract with DHS provides that IMCare must offer housing stabilization services (“HSS”) to IMCare members. These services are intended to provide support for members with disabilities and seniors to find and retain housing in the community. … Section 6.1.22 and its subparagraphs also outline the terms under which housing stabilization services are provided to members and how service providers will be compensated for services provided to members. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In January 2025, in accordance with IMCare’s obligations to prevent fraud, waste, and abuse, IMCare conducted a review of HSS providers. IMCare prepared a report of its findings, which was requested by DHS, and sent to DHS on May 1, 2025 and July 22, 2025. DHS initiated an investigation. As of the date of this letter, DHS’s investigation into the HSS service provider at issue is ongoing. The report includes private data on individuals and protected health information.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On August 13, 2025, IMCare received a data practices request asking for “all publicly releasable data” about Medicaid fraud in HSS programs:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>KARE 11 is requesting all publicly releasable data related to Medicare fraud concerns in the Housing Stabilization Services (HSS) program. Reports to DHS about fraud concerns in the program, documented determination of fraud by specific providers, stop payment orders, overpayment requests etc. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On September 11, 2025, Eric Villeneuve, Health &amp; Human Services Director, responded to the data practices request and informed the requesting party that the records requested were exempt from disclosure and cited applicable Minnesota law:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Per MN Statute 13.05, subd. 11, 13.387, and 13.46, subd. 3, records are currently withheld due to an open investigation. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The same day, the requesting party stated that he would be appealing the decision. The requesting party also stated that IMCare was not part of the “Welfare System” and the exemption for investigative data was therefore not applicable. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>IMCare has not received any appeal and is not aware of any further action taken by the requesting party about this request. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml">IMCare also submitted a copy of its contract with the Minnesota Department of Human Services (DHS) to provide Medicaid and MinnesotaCare services, which included provisions on offering housing stabilization services.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Is Itasca Medical Care, a county-based purchasing plan, subject to the requirements of Minnesota Statutes, section 13.46?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Under Minnesota Statutes, section 13.03, subdivision 1, government data are public unless a state statute, federal law, or temporary classification classifies data as not public.</p> <p xmlns="http://www.w3.org/1999/xhtml">When a private party enters a contract with a government entity to perform any of its functions, the private party must comply with Data Practices Act in carrying out its duties related to the contract. (Minnesota Statutes, section 13.05, subdivision 11.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.387 states, in part, “The provisions of section 13.05, subdivision 11, apply to … county-based purchasing plans … contracting with a government entity for health care related services.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.46, subdivision 1(c) defines “welfare system” for the purposes of that section. Subdivision 1(c) states, “‘Welfare system’ includes the Department of Human Services; … and persons, agencies, institutions, organizations, and other entities under contract to any of the above agencies to the extent specified in the contract.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, IMCare explained the data requester argued that it was not an organization included in the definition of “welfare system” as described in section 13.46, subd. 1(c). Therefore, the requester maintained, IMCare’s reliance on section 13.46, subdivision 3 to withhold responsive data was not appropriate.</p> <p xmlns="http://www.w3.org/1999/xhtml">IMCare added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[S]ection 13.46, subdivision 1(c) includes the “Department of Human Services” and “persons, institutions, organizations, and other entities under contract to any of the above agencies to the extent specified in the contract.” IMCare believes it is included within the definition of “welfare system” in subdivision 1(c) because it has a contract with DHS to provide, among other things, housing stabilization services.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with IMCare’s analysis.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.05, subd. 11 requires private parties to comply with the requirements of the Data Practices Act when contracting with a government entity to perform any of its functions. Section 13.387 establishes that county-based purchasing plans, such as IMCare, are subject to the requirements of section 13.05, subd. 11 when contracting with a government entity to provide health-care related services.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, as IMCare has noted, the definition of “welfare system” extends to organizations under contract with DHS to provide government services. IMCare has contracted with DHS to provide services to residents, including housing stabilization services, which were the subject of the August 13 data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Specifically, section 13.3 of IMCare’s contract with DHS states, “Under this Contract, [IMCare] is part of the ‘welfare system,’ as defined in Minnesota Statutes, §13.46, subd. 1, and Minnesota Rules, Parts 9500.1458 and 9506.0400, subp. 12. [IMCare] agrees to be bound by the applicable state and federal laws governing the security and privacy of information.” This language further supports the fact that IMCare is part of the “welfare system” under section 13.46.</p> <p xmlns="http://www.w3.org/1999/xhtml">Taken together, IMCare is subject to the requirements of section 13.46 because it has contracted with DHS to perform specific government functions involving health care services. As a result, IMCare’s response to the August 13 data request that the responsive data are part of an active investigation and classified as not public data under section 13.46, subd. 3 was appropriate.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Itasca Medical Care, a county-based purchasing plan, is subject to the requirements of Minnesota Statutes, section 13.46 because it has contracted with the Minnesota Department of Human Services to perform a government function. Therefore, IMCare meets the definition of “welfare system” as defined in section 13.46, subdivision 1(c).</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 13, 2025</p>7124842663742672082670492025-11-17T14:05:32Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner concluded that Minnewaska School Board violated the Open Meeting Law when a quorum of its members attended an invitation-only event at a private residence. open meeting lawinterpretation of a meetingmeetingeng266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-712951" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-11-13T16:37:47ZA member of the public asked whether the Minnewaska School Board violated the Open Meeting Law when a quorum of its members attended an invitation-only event at a private residence. The Commissioner determined that the Board violated the OML because four of the seven Board members were present and received information related to official school business. Although the Board did not take formal action or organize the event, the gathering met the definition of a meeting under the OML. Since this meeting was not properly noticed and was not open to the public, the Commissioner concluded that the Board did not comply with the requirements of the OML.November 13, 2025; Independent School District No. 2149, Minnewaska Area Schools36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Lucy Williams asked for an advisory opinion regarding Independent School District 2149, Minnewaska Area Schools, School Board (Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board submitted comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On September 23, 2025, a private group of residents hosted an informational meeting about an upcoming school bond referendum for Minnewaska Area Schools and sent invitations to other community members. The invitations stated the meeting “will provide the latest information as well as have Superintendent Rankin and school board members present.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board did not advertise the event nor provide any notice on its website or other locations. The Board chair and three other Board members were present at this event. A transcript of the meeting provided in the advisory opinion request shows the host introduced the Board members.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Superintendent then presented to the group and discussed financial investment in the school district, including possible changes to curriculum and facilities. He then answered some questions from attendees about funding. After the Superintendent presented, a speaker briefly discussed curriculum and job pathways for students. At the end of the meeting, a Board member provided information on how attendees can vote on the bond issue.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Minnewaska School Board comply with the Open Meeting Law, Minnesota Statutes Chapter 13D, when a quorum of members attended an invitation-only event at a private residence?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a school district is a public body subject the law. (Minnesota Statutes, section 13D.01, subdivision 1(b)(1).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Legislature did not define “meeting” in the OML, but the Minnesota Supreme Court has determined that a meeting subject to the OML “are those gatherings of a quorum or more members of the governing body … at which members discuss, decide or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983) (<em>Moberg</em>). While chance or social gatherings are not subject to the requirements of the OML, Moberg held that “a quorum may not, as a group, discuss or receive information on official business in any setting under the guise of a private social gathering.” <em>Moberg</em> at 518 (citing <em>St. Cloud Newspapers, Inc. v. District 742 Community Schools</em>, 332 N.W. 2d 1, 7 (Minn. 1983)).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML will be interpreted in favor of public access and transparency. Specifically, it noted that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” <em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729 (Minn. 2002). The Court also explained that the OML “will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by [the law].” <em>St. Cloud Newspapers v. District 742 Community Schools</em>, 332 N.W. 2d at 6.</p> <p xmlns="http://www.w3.org/1999/xhtml">In finding that a gathering of township board members violated the OML, the Commissioner relied on <em>Moberg</em> and an earlier Minnesota Attorney General opinion. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267093" target="_blank">Advisory Opinion 16-005</a>, Issue 3.). The Attorney General wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We also point out that the fact that a particular gathering does not purport to be and is not intended to be an official council meeting does not remove it from the requirements of the open meeting law [sic] and the fact that some of the subjects do not at the time of the gathering appear to require formal council action is of no consequence.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">(See Op. Atty. Gen. 63a-5, Oct. 28, 1974.) Thus, there are only two elements that determine whether a gathering is subject to the OML: 1) a quorum or more of members of the public body are present, and 2) those members discuss, decide, or receive information related to the official business of that public body.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the Board stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Board did not deliberate toward decisions, receive testimony as a body, or transact official business at the private gathering. There was no roll call, agenda, motions, votes, or direction to the administration. . . .The District did not organize the event. Any comments by the Superintendent were informational in nature; board members’ presence alone did not constitute Board action.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges the Board’s comments, which clarify that the Board did not take any official action at this meeting. However, formal action following a public body’s procedures or bylaws is not required for a meeting to occur under the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">Four of the seven Board members attended the September 23 event, resulting in a quorum of Board members being present. At the event, the Superintendent discussed school funding and plans for improvements and changes to the District, a presenter discussed curriculum opportunities, and a Board member provided information on voting for the related school bond. The topic and focus of the entire event were related to the Board’s work. Additionally, the members of the Board that attended were introduced as Board members, and the invitation itself stated that members of the Board would be present. The quorum of members received information related to the official business of the Board. Therefore, this gathering was subject to all the applicable requirements of the OML, which the Board did not meet.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnewaska School Board did not comply with the Open Meeting Law, Minnesota Statutes Chapter 13D, when a quorum of members attended an invitation-only event at a private residence.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 13, 2025</p>7129512670202025-11-17T14:00:12Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner concluded that 911 calls were public request for service data under section 13.82, subd. 3, and therefore the County did not respond appropriately.911 calltranscript911 transcriptrequest for service dataeng266301266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-706901" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-09-23T20:05:45ZSeveral media requesters asked whether a county sheriff’s office responded appropriately to a request for a 911 transcript. The County argued that portions of the transcript were active investigative data under section 13.82, subd. 7 and a health record under the Minnesota Health Records Act. The Commissioner concluded that 911 calls were public request for service data under section 13.82, subd. 3, and therefore the County did not respond appropriately.September 23, 2025; Hennepin County Sheriff's Office36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Isabella Nascimento, legal counsel for several media requestors (Media Requestors), requested an opinion regarding the Hennepin County Sheriff’s Office’s (HCSO) response to requests for government data made under Minnesota Statutes, Chapter 13 (Data Practices Act). HCSO provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Media Requestors provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On June 16, 2025, KSTP’s Ryan Raiche requested “the 911 call transcript of the call made by Hope Hoffman to report the shooting of her parents by Vance Boelter.”… On June 17, KARE 11’s Lou Raguse submitted a similar request for the “[t]ranscript of all 911 calls related to the response to . . . a shooting.”… On July 7, Star Tribune’s MaryJo Webster likewise requested “a copy of the transcript of a 911 call placed from within the home . . . in Champlin, on Saturday, June 14.”…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County responded to all three requests with the same response:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The requested data is ‘criminal investigative data’ and is ‘confidential or protected nonpublic’ while the investigation is active pursuant to Minn. Stat. § 13.82, subd. 7. An investigation becomes inactive upon the occurrence of any of the events listed in this subdivision. Accordingly, the requested data cannot be disclosed while the investigation is active.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In response to KARE 11 and Star Tribune, the County also claimed that “much of the requested data cannot be disclosed pursuant to the Minnesota Health Records Act,” but failed to cite any particular provision of the law to support its denial.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>KSTP appealed the denial of its request, but the County stood on its improper denial, again citing Minn. Stat. § 13.82, subd. 7. According to the County, “Subdivision 7 governs investigative data except for data in subdivisions 2, 3, and 6 of Section 13.82. The requested transcript falls under subdivision 4, and it is therefore confidential or protected non-public under subdivision 7 while the investigation is active.” It also added a reference to the Minnesota Health Records Act, still without citing to any particular provision therein. (Citations and references omitted.)</em></p> <p xmlns="http://www.w3.org/1999/xhtml">HCSO subsequently provided the Media Requestors with a redacted transcript, for which it charged the Media Requestors, and cited section 13.82, subdivision 7 and Minnesota Statutes, section 144.293 of the Minnesota Health Record Act (MHRA) for the redactions.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Hennepin County Sheriff’s Office respond appropriately to data requests by the media for the transcript of a 911 call?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>1. Data Practices Act</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless a state statute, federal law or temporary classification classifies the data as not public. (Minnesota Statutes, section 13.03, subdivision 1.) Some data that law enforcement collects and maintains are subject to this general, public presumption. When there is a criminal investigation however, Minnesota Statutes, section 13.82 and other statutes regulating law enforcement data classify the data. Certain law enforcement data are always public, certain data are always private, and certain data are temporarily confidential/protected nonpublic.</p> <p xmlns="http://www.w3.org/1999/xhtml">The following provisions of section 13.82 are relevant to this opinion:</p> <p xmlns="http://www.w3.org/1999/xhtml">Subdivision 3 provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The following data created or collected by law enforcement agencies which document requests by the public for law enforcement services shall be public government data:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) the nature of the request or the activity complained of.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Subdivision 4 provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The audio recording of a call placed to a 911 system for the purpose of requesting service from a law enforcement, fire, or medical agency is private data on individuals with respect to the individual making the call, except that a written transcript of the audio recording is public, unless it reveals the identity of an individual otherwise protected under subdivision 17. A transcript shall be prepared upon request. The person requesting the transcript shall pay the actual cost of transcribing the call, in addition to any other applicable costs provided under section 13.03, subdivision 3. The audio recording may be disseminated to law enforcement agencies for investigative purposes. The audio recording may be used for public safety and emergency medical services training purposes.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Subdivision 7 provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Except for the data defined in subdivisions 2, 3, and 6, 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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined on the classification of a 911 transcript. In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267631" target="_blank">Advisory Opinion 01-050</a>, the Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Regarding the 911 transcript... It is the Commissioner's opinion that the transcript cannot be protected under subdivision 7 as criminal investigative data because it is not data that the Department collected or prepared in order to prepare a case against the caller. Rather, a call of this nature to a 911 center is a type of request for service data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267587" target="_blank">Advisory Opinion 08-006</a>, a County argued that it could withhold a 911 transcript based on section 13.82, subdivision 14, which allows a law enforcement agency to withhold public response or incident data (designated by section 13.82, subdivision 6) temporarily. The Commissioner wrote, “[t]he transcript of a call to a 911 system is request for service data, not response or incident data.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Neither of the parties asserted that the call at issue in this advisory opinion included any identities protected by section 13.82, subdivision 17.</p> <p xmlns="http://www.w3.org/1999/xhtml">In their opinion request, the Media Requestors argued:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The data requested by the Media Requestors is public under the plain text of Minn. Stat. § 13.82, subd. 4…. That this data is public is bolstered by Subdivision 3, which makes public certain data “which document requests by the public for law enforcement services” (a 911 call is literally such a request). Id., subd. 3; id., subd. 4 (“a call placed to a 911 system for the purpose of requesting service from law enforcement … is private …, except that a written transcript of the audio recording is public” (emphasis added)). In other words, the transcript of a 911 call that requests law enforcement services is public data—which is precisely what the Media Requestors requested from the County here.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the Commissioner, HSCO wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Except for data defined in subdivisions 2, 3, and 6, under Minnesota Statutes § 13.82, subdivision 7, criminal investigative data is not public while the investigation is active.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Recordings and transcripts of 911 calls are not addressed in subdivisions 2, 3, or 6 of Minnesota Statutes § 13.82. They are instead addressed in subdivision 4. Subdivision 4 establishes that the audio of 911 calls is private, but that a written transcript of the call is public unless it would reveal the identity of certain protected individuals.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Under the plain language of Section 13.82, because a transcript of a 911 call is not addressed in subdivisions 2, 3, or 6, it is not public under subdivision 7 while it is active criminal investigative data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the Media Requestors. It has been the Commissioner’s longstanding opinion that a 911 call is request for service data under 13.82, subd. 3. A 911 call communicates the “nature of the request or the activity complained of,” so relevant agencies can provide an appropriate response.</p> <p xmlns="http://www.w3.org/1999/xhtml">While the Data Practices Act generally classifies individual pieces of information or data elements, section 13.82, subd. 4 classifies an entire record as either private (“the audio recording”) or public (“a written transcript”). The classifications apply to a call placed to a 911 system “for the purpose of requesting services from a law enforcement agency, fire, or medical agency.” (Emphasis added.) As such, 13.82, subd. 4 acts as an exception to the always public classification of request for service data in 13.82, subd. 3, by creating a private classification of the audio recording while continuing to ensure public access to the call in the form of a transcript.</p> <p xmlns="http://www.w3.org/1999/xhtml">As the parties note, section 13.82, subd. 7 excludes “request for service data” from the not public classifications of active investigative data. Here, the Media Requestors requested a transcript of the June 14, 2025, 911 call. HCSO denied access to the transcript in whole, and then in part, stating the 911 call was active investigative data pursuant to section 13.82, subd. 7 and later, also citing the MHRA.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, HCSO did not respond appropriately because the transcript of the 911 call is public request for service data under section 13.82, subds. 3 and 4, rather than active criminal investigation data under section 13.82, subd. 7.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>2. Minnesota Health Records Act</em></p> <p xmlns="http://www.w3.org/1999/xhtml">HCSO also argued that part of the 911 transcript is a health record under the Minnesota Health Records Act, Minnesota Statutes, sections 144.291-144.298, and cannot be provided to the Media Requestors.</p> <p xmlns="http://www.w3.org/1999/xhtml">For information to be a “health record” under the MHRA, it must relate to a “patient.” A patient is defined as “a natural person who has received health care services from a provider for treatment.” (Section 144.291, subd. 2(g).) (emphasis added). Individuals certified and regulated by the Office of Emergency Medical Services under Minnesota Statutes Chapter 144E are not included in the definition of a “provider.” (See section 144.291, subd. 2(i).)</p> <p xmlns="http://www.w3.org/1999/xhtml">HCSO provided the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Applying [the MHRA] to the present case, HCSO properly withheld a portion of the 911 transcript because it constitutes health records as they are defined under the Minnesota Health Records Act. A portion of the call captures communications with a medical dispatcher for the purpose of conveying health information regarding the injuries… to medical providers.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">HCSO’s argument is not persuasive. When a government entity receives a health record directly from a provider, they are constrained from further dissemination by the MHRA. (Section 144.293, subdivision 2.) Documentation resulting from an individual sharing health-related information with a non-provider (e.g., law enforcement officers, EMT, emergency medical dispatch, etc.), is not subject to the MHRA. The exchange of information between the caller and dispatch here was to assess the nature of the requested service so that the proper response could be provided. As noted above, the transcript of this exchange documents a public request for service under section 13.82, subd. 3. Therefore, the MHRA is not an appropriate basis on which to deny access to a 911 transcript.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that the issue of access to 911 transcripts during an active investigation amplifies the inherent tension in the Data Practices Act among the three foundational policy considerations upon which the law rests: personal privacy, transparency, and government operations and efficiency. The legislature enacted section 13.82, subd. 4 (originally codified at subdivision 3a) in 1994 after the media requested and obtained a public recording of a 911 call during the active investigation of another tragic incident. In subsequently classifying the recording as private, the legislature acknowledged the caller’s right to privacy in the audio of their own voice in a sensitive and emotional situation.</p> <p xmlns="http://www.w3.org/1999/xhtml">The legislature also preserved the public’s right to obtain data necessary to observe and monitor government actions by requiring the creation of a transcript upon request, and it ensured that the recording could be accessed by the government entities that need it to do their jobs. If, in attempting to give effect to each of these competing interests, the legislature has not struck the intended balance, the Commissioner encourages the legislature to reconsider the language of section 13.82.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Hennepin County Sheriff’s Office did not respond appropriately to data requests by the media for the transcript of a 911 call when it initially denied the request and when it subsequently provided a redacted transcript.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">September 23, 2025</p>7069012664592667362670492665282664612025-10-21T13:07:03Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-704077" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-09-03T18:04:03ZA member of the public asked whether the Twin Lakes City Council violated the Open Meeting Law when it held an emergency meeting on June 3, 2025, to approve a wastewater services contract. The Commissioner determined that the Council violated the OML because the circumstances did not justify calling an emergency meeting, which is reserved for issues requiring immediate action, typically involving public safety. Since the matter could have been handled through a properly noticed special meeting, the Council’s use of the emergency meeting procedure did not comply with the OML.September 3, 2025; Twin Lakes City Council36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Cheryl Neilon (Neilon) asked for an advisory opinion regarding the Twin Lakes City Council’s (Council) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Council did not provide comments in response to this advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On June 3, 2025, the Council held an emergency meeting to approve a contract with MMS Environmental to perform wastewater services. The meeting minutes state:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Mayor Prestholt opened the meeting, stating we were there to hire MMS to do our water and sewer sampling and to keep us in compliance with the State. The Minnesota Pollution Control Agency gal . . . . has been talking with the Mayor and she told him that we have to get this done as soon as possible. The Mayor said there is an open window for draining the sewer ponds as the water is correct and right. He said we’ve got to get the samples taken and mailed in.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">At this meeting, one member abstained and the remaining members voted to approve the contract.</p> <p xmlns="http://www.w3.org/1999/xhtml">Neilon also provided a copy of the Council’s June 3 meeting minutes as well as a copy of the City’s contract with MMS Environmental to perform regular wastewater services for three years.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the members of the Twin Lakes City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held an emergency meeting on June 3, 2025 to consider a contract?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The Legislature did not define “meeting” in the OML, but the Minnesota Supreme Court has determined that a meeting subject to the OML “are those gatherings of a quorum or more members of the governing body … at which members discuss, decide or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML will be interpreted in favor of public access and transparency. Specifically, in <em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729 (Minn. 2002), it noted that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” The Court also stated the OML “will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by [the law]” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W. 2d 1, 6 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">One of the mechanisms to ensure a public body’s meetings are open to the public and transparent is to provide appropriate notice of its meetings as is required by Minnesota Statutes, section 13D.04. This section details how public bodies must provide notice for three different types of meetings. First, subdivision 1 requires public bodies keep a schedule of its regular meetings on file at its primary offices. No other notice for a regular meeting is required. Next, for a special meeting that is not on the regular meeting schedule, or a rescheduled regular meeting, subdivision 2 requires that a public body post a written notice of the date, time, place and purpose of the meeting on the principal bulletin board, or if there is not bulletin board, on the door of its usual meeting room. This notice must be posted at least three days before the meeting. Additionally, the public body must deliver a notice for this special meeting to any person who requested in writing to be notified of these meetings. A public body may publish this notice in an official newspaper in place of delivering these individual notices. Subdivision 3 describes the third and final type of meeting as an emergency meeting, which only requires that the public body make a good faith effort to notify news media that filed a written request to receive notice of an emergency meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The notification requirements for emergency meetings are limited given that these meetings, by their very nature, are held to address issues that require immediate consideration by the public body. Section 13D.04, subdivision 3 defines an emergency meeting as “. . . a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body.” Under this definition, the subject matter of an emergency meeting is such that the three-day notice required for a special meeting is not possible. Additionally, the Commissioner has previously stated that public bodies should hold emergency meetings only in rare circumstances where public safety is at risk. Examples of emergency situations would include holding a meeting to respond to a natural disaster, or a health epidemic caused by an event such as an accident or a terrorist activity. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267124" target="_blank">Advisory Opinions 06-027</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266443" target="_blank">12-004</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is limited to the information presented to her. From the information provided, it does not appear that the City’s need to sign a contract required immediate attention, or that waiting the three days required to notice and hold a special meeting would jeopardize public safety. If the City’s water issues created a public safety concern that required immediate approval of the contract, then holding an emergency meeting would have been appropriate under 13D.04, subd. 3. However, the minutes for the June 3 meeting only indicate that the Council wished to sign the contract with MMS Environmental to perform regular wastewater services to comply with other state requirements regarding its water services quickly. Given the Supreme Court’s direction that the OML must be interpreted in favor of public access, the Council’s decision to hold an emergency meeting on June 3 to discuss this contract did not comply with the OML.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Members of the Twin Lakes City Council did not comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held an emergency meeting on June 3, 2025 to consider a contract.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">September 3, 2025</p>7040772663922025-09-05T12:00:32Z266258This is an advisory opinion of the Commissioner of Administration. The Commissioner determined that the City did not respond appropriately to four data requests made by a member of the public.data requestresponse to data requestreasonable timeeng266297266272<custom:Link urlOnly="true" type="Component" destination="tcm:36-701366" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-08-08T15:29:13ZA member of the public asked whether a city responded appropriately to their requests for public data. The requester made four data requests between September 1, 2023 and September 13, 2024, but received no response from the City as of July 2025. The City indicated that it was working with the data requester and had begun providing data to the requester upon learning of the pending advisory opinion request. The Commissioner determined that the City did not comply with the Data Practices Act because its response was not appropriate, prompt, or within a reasonable time.August 8, 2025; City of Fertile36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">April Swenby (Swenby) requested an advisory opinion regarding the City of Fertile's (City) response to her requests for government data made under Minnesota Statutes, Chapter 13 (Data Practices Act). The City Administrator of Fertile provided comments in response to this advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Swenby provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>During the timeframe of July 2023, and September 2024, I made several data practice requests. During this time frame the City of Fertile did not have a data practice policy ..., thus most of my requests were not made on a specific form, but they were always done in written communication.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I have made good faith efforts to obtain public data and I have been unable to receive a response from the City of Fertile on the above requests. I have attended multiple public meetings to ask for assistance, I have sent reminder e-mails to staff, and I have e-mailed council members asking for assistance. I have also asked the Department of Administration for assistance for the past two years on the proper way to obtain public data and have followed their suggested advice to work with City staff. ... Most recently, the Mn [<em>sic</em>] Department of Administration ... has reached out to the City of Fertile prior to June 13, 2025. There has been no communication to me about my data practice requests and no concerted effort to provide me public data since the Mn [<em>sic</em>] Department of Administration conversation with the City of Fertile's staff.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Swenby provided copies of her correspondence with the City and of four data requests she had submitted between September 2023 and September 2024. The various requests asked for access to financial records, a copy of a city council meeting recording, copies of data cited in a financial audit of the City, and copies of billing records related to the City's payments to the Public Employees Retirement Association and related emails.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Fertile respond appropriately to requests for data from a member of the public submitted on the following dates: September 1, 2023; September 30, 2023; December 24, 2023; and September 13, 2024?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity receives a data request from a requester who is not the subject of the data, the entity is required to have procedures to provide access to data in “an appropriate and prompt manner” and “within a reasonable amount of time.” (Minnesota Statutes, section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.) The Data Practices Act and Minnesota Rules do not define “appropriate,” “prompt,” or “reasonable amount of time.” However, the Commissioner has stated in previous advisory opinions that these terms are relative to the nature or complexity of the data request and the amount of responsive data requested. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266715" target="_blank">Advisory Opinions 02-020</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266899" target="_blank">14-003</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-411892" target="_blank">19-013</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the City wrote, “[T]he City is working with the data requestor on an ongoing basis to deliver the data and requested documents to her.” The City also described the various documents and data it had begun providing to Swenby upon learning of the pending advisory opinion request, as well as steps it planned to take to provide access to data not yet provided.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates the City’s update that it is now providing access to the requested data. However, these updates do not change the fact that the City has not complied with the Data Practices Act.</p> <p xmlns="http://www.w3.org/1999/xhtml">As of early July 2025, the City had not yet offered any responses to Swenby’s data requests submitted in 2023 and 2024. After learning of the pending advisory opinion, the City then began providing Swenby with access to portions of the data she requested. However, this access comes after more than a year and many months from her initial data requests, which is neither prompt nor timely given the scope of the data Swenby requested. Additionally, the City did not offer further information about the processing of the requests or access to data despite Swenby’s attempts to learn about the status of the requests and efforts to resolve her concerns informally.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the City’s current responses to Swenby’s data requests are not appropriate, prompt, or within a reasonable amount of time.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has a final note about the City’s responses to these data requests. It appears at least one communication Swenby sent to the City on July 29, 2023, contained questions rather than a data request. However, the City indicated to Swenby that it would treat the questions as a request for data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Previous advisory opinions have made clear that the Data Practices Act requires government entities to respond to data requests. The law does not require an entity to respond to questions that do not clearly ask to either inspect or obtain copies of government data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267827" target="_blank">Advisory Opinions 04-003</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267699" target="_blank">04-036</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267419" target="_blank">06-029</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner encourages the City to review its procedures to ensure that it is not treating all questions related to its operations as data requests. Data requesters should also frame their communications in ways that do not allow for confusion as to whether access to government data is being requested.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Fertile did not respond appropriately to requests for data from a member of the public submitted on the following dates: September 1, 2023; September 30, 2023; December 24, 2023; and September 13, 2024.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">August 8, 2025</p>7013662663992665282663112670492672202665502663002662762664082669042025-08-11T05:00:39Z266258266297266272<custom:Link urlOnly="true" type="Component" destination="tcm:36-695922" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-06-30T16:38:17ZA member of the public asked whether a school district responded appropriately to a request for public data. The requester asked for data 11 months prior, and had only received portions of the data after inquiries from the Department of Administration and the requester. Additionally, the District indicated it was providing only a subset of the data due to technical difficulties with retrieving all the data requested. The Commissioner determined that the District did not respond appropriately to the request.June 30, 2025; Independent School District No. 623, Roseville36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Charles Laszewski (Laszewski) requested an advisory opinion regarding Independent School District 623, Roseville’s (District) response to his request for government data under Minnesota Statutes, Chapter 13 (Data Practices Act). The District did not provide comments in response to this advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Laszewski provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml">Laszewski submitted a data request to the District on June 18, 2024. This request stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I am requesting a copy of all emails, text messages and voicemail messages sent or received by you, other school district staff, and members of the School Board pertaining to school bus transportation, Centerline Charter bus company, electric school buses, the U.S. Environmental Protection Agency, Chuck Laszewski, Sonita van der Leeuw and the Roseville Area High School Students for Climate Action. My request is for the time frame of May 1, 2022 through June 17, 2024.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The District and Laszewski first communicated regarding this request in July 2024, and Laszewski received emails from the District updating him about the status of his request on August 6 and 12, 2024. In these updates, the District communicated it was experiencing technical issues with running such a broad search of its email servers and also mentioned that the amount of data responsive to Laszewski’s request was substantial. The District stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . .If we were able to include the keyword “electric”, it would greatly reduce the results and make it more manageable.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The request as currently stated will require staff time to sort through the results once we hear back from Microsoft. In addition, redacting will be required. The request as currently stated may result in a cost to you of $500 minimum to $1,000 or more depending on staff time requirements. We can run the electric bus keywords and this will likely be of little or no cost to you.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In correspondence dated August 14, 2024, Laszewski declined to narrow his request to just correspondence mentioning “electric bus,” as suggested by the District, and requested that he receive all the data responsive to his initial request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Laszewski next requested assistance from Data Practices Office staff, who contacted the District to inquire into his request. Then, on October 15, 2024, the District made a portion of the requested data available for inspection. At this inspection, 100 emails were available for Laszewski to review. He did not hear from the District again until December 3, 2024, when he reached out to inquire whether he could inspect more data related to his request. The District responded and scheduled a second time for inspection.</p> <p xmlns="http://www.w3.org/1999/xhtml">At this second visit to inspect data on December 9, 2024, there were 15 emails for Laszewski to review. Laszewski alerted the District to his concerns about the data provided, noting that it appeared the District had improperly narrowed its search to only emails containing the phrase “electric bus.” The District acknowledged that the search had been conducted only for emails containing “electric bus” due to concerns from the technology staff about the volume of emails that a broader search would generate. The District added that staff are required to review and redact all emails that Laszewski requested with the broader search. However, the District stated it would contact its technology staff about retrieving data related to Laszewski’s original request.</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 5, 2025, Laszewski reached out to the District again to request an update on his data request. The District confirmed receipt of Laszewski’s email on May 5 but did not provide any further updates.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Independent School District 623 respond appropriately to a request for data submitted by a member of the public on June 18, 2024?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act requires government entities to establish procedures to respond to requests from members of the public in an appropriate and prompt manner and within a reasonable amount of time. (Minnesota Statutes, section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.) The Commissioner has previously stated that an appropriate, prompt, and reasonable response will depend on the complexity of the request and the amount of responsive data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267963">Advisory Opinions 13-003</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266899">14-003</a>).</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, Minnesota Statutes, section 13.03, subdivision 1 requires government entities to “keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.” The Data Practices Act does not contain an exception allowing a government entity to deny access to data because a request results in a large amount of data that must be compiled and reviewed. (See, e.g., <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-514480">Advisory Opinion 22-001</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court, in <em>Webster v Hennepin Cnty,</em> 910 N.W.2d 420, 431 (Minn. 2018) stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Section 13.03, subdivision 2(a), dictates that government data be made available and that personnel responsible for making it available establish procedures that insure it is made available. It follows, then, that when the procedures are followed and the requested data are not made available appropriately or promptly, the “established procedures” do not insure that government data are properly available.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is limited to the information provided to her, and the District did not offer comments or additional facts in response to this advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Laszewski’s request for copies of data on June 18, 2024, included specific keywords contained in more than two years of communications and, at some point, the District understood that it should offer Laszewski access to the data via inspection. The District informed Laszewski that there was a substantial amount of data responsive to this request and asked him to narrow his data request, which he declined to do. The District subsequently provided Laszewski with access to some data responsive to his request, but only after being prompted by both the requester and staff in the Data Practices Office.</p> <p xmlns="http://www.w3.org/1999/xhtml">As of May 2025, the District had provided Laszewski with 115 emails and, despite repeated statements that the responsive data were substantial, was not clearly communicating with Laszewski about when he could access the additional responsive data. Although the Data Practices Act does not require the District to provide Laszewski with regular updates on the status of his request, it must have procedures to ensure its response to the request is appropriate. Its current procedures are not sufficient if Laszewski remains unsure whether the District will provide access to all responsive data nearly 11 months after his initial request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the District’s conversations with Laszewski suggested it chose to narrow the scope of his data request due to the amount of responsive data, despite his objections. Requesters are entitled to access any public data a government entity maintains, and a government entity cannot limit what data are accessible to a requester simply because responding to the request may be burdensome or technically difficult to gather and review all responsive data. Any data that the District maintains must be easily accessible for convenient use. Therefore, the District is still obligated to provide Laszewski with access to all public data he has requested rather than just the public data in communications containing the term “electric bus.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Taken together, the District has not complied with the Data Practices Act because it has not responded appropriately to Laszewski’s data request.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Independent School District 623 did not respond appropriately to a request for data submitted by a member of the public on June 18, 2024.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 30, 2025</p>6959222663992665282668042025-07-01T20:44:41Z266258266297266520<custom:Link urlOnly="true" type="Component" destination="tcm:36-695899" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-06-30T16:36:02ZA member of the public asked whether a state agency responded appropriately to a data request for "all emails" related to specific topics when the agency did not also provide documents attached to the responsive emails. The state agency's email retention policy then automatically destroyed several of the emails and attachments before the agency provided access to the missing responsive documents. The state agency maintained that the requester was not clear that the request for "all emails" included the attached documents. The Commissioner noted documents attached to an email message are part of an email itself. Therefore, the agency did not respond appropriately when it failed to provide access to email attachments in its response to the request. Further, the agency could not remedy the situation because the email auto-delete policy destroyed responsive data. The Commissioner encouraged government entities to ensure they have procedures in place to retain official records and data responsive to a request when using email auto-delete policies.June 30, 2025; Iron Range Resources & Rehabilitation36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">John Ramos, publisher of the Duluth Monitor (Monitor), asked for an advisory opinion regarding the Department of Iron Range Resources &amp; Rehabilitation’s (IRRR) response to the Monitor’s request for data made under Minnesota Statutes, Chapter 13 (Data Practices Act). The IRRR’s legal counsel provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Monitor provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml">On July 18, 2024, the Monitor submitted a data request to IRRR for:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) All emails which mention ‘Boathouse Bay’ for the period of March 1, 2024 through July 18, 2024;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) All emails to or from David Drown for the period March 1, 2024 through July 18, 2024;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) All emails to or from John Anderson for the period March 1, 2024 through July 18, 2024; and</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(4) All of Chris Ismil’s emails for the period July 1, 2024 through July 18, 2024.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On September 8, 2024, the IRRR provided the Monitor with data responsive to its request, but the IRRR did not include documents attached to the requested emails as part of the responsive data.</p> <p xmlns="http://www.w3.org/1999/xhtml">On December 30, 2024, the Monitor contacted the IRRR to inform the agency that the email attachments were missing. The IRRR followed up with the Monitor on January 9, 2025, to ask for a list of email attachments that were missing, which the Monitor provided on January 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Monitor sent further correspondence to the IRRR about the status of the requested emails but did not receive a response. The Monitor then requested assistance from Data Practices Office staff, who contacted the IRRR.</p> <p xmlns="http://www.w3.org/1999/xhtml">On March 7, 2025, the IRRR provided copies of several documents attached to emails. The IRRR also explained:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The agency is responding to your request to the best of our ability. Unfortunately our e-mail retention policy automatically deletes e-mails 45 days after receipt, unless saved by staff for their own reference. Thus attachments to deleted emails are deleted as well. This applies to the following attachments as numbered by you: 1,2,3,5,6,7,8,10,13,16,17,19, 20,22,23,24,25,26,27,29,30,31.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Department of Iron Range Resources &amp; Rehabilitation respond appropriately to a request for government data maintained in emails?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.)</p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity receives a request from a requester who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable amount of time. (Minnesota Statutes, section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.) If a government entity receives a data request that it believes is vague or ambiguous, the entity may need to contact the requester to seek clarification to ensure it can meet its obligations under the Data Practices Act to respond appropriately. (See, e.g., Advisory Opinions 03-026 and 14-006.) Further, a government entity shall permit a person to access public data upon request at reasonable times and places. (Minnesota Statutes, section 13.03, subdivision 3(a).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act does not establish general retention periods for government data, with some exceptions. Rather, the Official Records Act, Minnesota Statutes, section 15.17, requires a government entity to create records that document its official activities. Under the Records Management Statute, Minnesota Statutes, section 138.17, official records must be kept for the length of time stated in the entity’s records retention schedule.</p> <p xmlns="http://www.w3.org/1999/xhtml">Government data that are transitory in nature and not part of an official record do not need to be maintained for any specific length of time, and a government entity may destroy transitory data at any time. However, the Commissioner has previously opined that if data exist when an individual requests access to those data, then the Data Practices Act requires the entity to provide access to the responsive data prior to destruction. (See Advisory Opinions 07-006 and 08-028.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the IRRR wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>While a state agency’s retention of official records is governed by statute and policy, state agencies do not generally have a blanket e-mail retention policy. The agency’s policy is to retain e-mails for 45 days, after which they are automatically deleted. However, many employees delete emails before the 45-day period. Employees may also save email messages in their work files....</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...The issue here is whether the agency should have known that the Monitor was requesting every attachment to the provided e-mails.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The first data request appeared to focus on the Boathouse Bay project in Silver Bay, and specifically noted a request for e-mails, which were provided. The Monitor did not initially specify that it was also requesting email attachments. Upon receiving the requested data, the Monitor did not respond that the submission was incomplete and that attachments were missing. However, it waited almost four months before following up.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Additionally, when The Monitor did follow-up the request was so vague and broad that clarification was required. The initial request appeared to focus on the Boathouse Bay Project, however the request for attachments related to several different topics, some unrelated to the original request and some other attachments were referenced in the subject line, but not attached to the email itself.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The agency does not believe that it violated state statutes by not providing the email attachments. While the agency has a responsibility to maintain accurate records documenting its official activities, it is also the requestor’s responsibility to provide sufficient detail to enable the agency to fulfill the request. In this case, emails from a specific individual were requested and subsequently provided. Attachments were not requested until weeks later, and many of those later-requested attachments were unrelated to the Boathouse Bay Project.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees that IRRR met its obligations under the Data Practices Act when responding to the Monitor’s data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.03, subd. 2(a) requires a government entity to have procedures to provide access to data it maintains in an appropriate manner upon receiving a data request. Here, the IRRR provided only a portion of data on September 8, 2024, that were responsive to the Monitor’s data request, which meant it did not provide a complete and appropriate response. The IRRR’s obligation was to provide access to all responsive data (i.e., the emails and attachments) that it maintained at the time of the Monitor’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response, the IRRR suggested that the Monitor was not clear that its request for “all emails” also included data that were attached to those emails. However, documents attached to emails are part of the email itself. The attachments are responsive to a request for “all emails” in the same way that the data in an email subject line, the date and time the email was sent, and recipients of the email are responsive data in a request for “all emails.”</p> <p xmlns="http://www.w3.org/1999/xhtml">As a result, it was unreasonable for the IRRR to interpret the Monitor’s request for “all emails” to exclude data attached to those emails. Moreover, if the IRRR was uncertain whether the Monitor’s initial request for “all emails” also included the attachments to emails, then the IRRR should have sought clarification from the Monitor to ensure it could provide an appropriate response to the data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the IRRR employed technology that automatically deleted its emails after 45 days. This technology destroyed data that were responsive at the time of the Monitor’s data request, and it was no longer possible for the IRRR to remedy its initial failure to provide the Monitor with all data it had requested.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that some of the Monitor’s concerns may have been avoided if it had followed up with the IRRR about the missing data shortly after receiving a response on September 8. Nonetheless, this fact does not alter the IRRR’s obligation under the Data Practices Act to have procedures that ensures it responds fully to data requests and provides access to all responsive data before the destruction of those data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the IRRR did not respond appropriately to the Monitor’s request for emails it had maintained because it failed to provide all responsive data to the Monitor’s request. It was then unable to remedy the situation because several email attachments were automatically destroyed prior to the IRRR providing the Monitor with access to those data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has a final note about auto-delete email retention policies. These types of automatic data deletion tools are not prohibited by the Data Practices Act. However, all government entities have obligations under the Official Records Act and Records Management Statute to create and retain records documenting their official activities. As noted above, government entities are also obligated to provide access to data that are responsive to a data request before any destruction.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner encourages government entities that use technology to automatically delete emails to establish appropriate procedures that allow them to identify and retain email data responsive to a pending data request as well as any official records that may be contained in emails prior to any deletion. These procedures can help ensure government data and official records are not inadvertently destroyed in violation of the Data Practices Act, Official Records Act, or Records Management Statute.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Department of Iron Range Resources &amp; Rehabilitation did not respond appropriately to a request for government data maintained in emails because it did not provide all data that were responsive to the request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 30, 2025</p>6958992671112663992665512025-07-01T18:24:46Z266258515651<custom:Link urlOnly="true" type="Component" destination="tcm:36-693194" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-06-09T20:11:38ZA City asked whether Minnesota Statutes, section 13.685 classifies data about a future municipal electric utility customer. The Commissioner determined that an individual or entity is a customer of the municipal electric utility if it has purchased or has a contract or agreement to purchase electric utility services from the municipal electric utility. As a result, a future municipal electric utility customer is not a customer for purposes of section 13.685, and data about the future customer are presumptively public. June 9, 2025; City of Chaska36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The City of Chaska requested an advisory opinion from the Commissioner about whether certain data the City maintains are classified as private or nonpublic data on municipal electric utility customers under Minnesota Statutes, section 13.685.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The City received a request from Mr. Wade Sorenson for government data related to the development of a data center within the City by an entity called Cloud HQ. Cloud HQ has been in the process of securing approvals for its development for several years and has received approval for preliminary grading and berm construction, platting, and rezoning. The City operates a municipal electric utility, and the Cloud HQ site is located within the City of Chaska’s electric utility service territory as assigned by the Minnesota Public Utilities Commission. The original request, which is included in this submission, stated the following requests:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . . 5. Provide a copy of all internal and external communications, documents and meeting notes with CloudHQ (or other parties) related to electricity consumption by the facility.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>6. Provide a copy of all internal and external communications, documents and meeting notes with CloudHQ (or other parties) related to utility availability guarantees, SLAs, or prioritization of service for electricity or water to the data center facility.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>7. Provide a copy of all internal and external communications, documents and meeting notes with CloudHQ (or other parties) related to reduced or preferential pricing for electricity, water or sewer fees.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . . The City ultimately did not provide Mr. Sorenson with 294 files responsive to requests numbers 5, 6, and 7 (the “Electric Data”). The City determined the Electric Data were classified as nonpublic pursuant to MN Stat. § 13.685. As previously stated, the City operates a municipal electric utility, and Cloud HQ’s development site lies within the City’s electric service territory. The Electric Data were responsive to request number 5 and parts of numbers 6 and 7 of Mr. Sorenson’s request for data. The City informed Mr. Sorenson on April 15, 2025 that it would not release the Electric Data.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Are data about future municipal electric utility customers classified as not public data by Minnesota Statutes, section 13.685?</li> <li>Are construction plans, communications, and similar data related to a city providing electric utility services to a future customer classified as not public data under Minnesota Statutes, section 13.685?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies all government data as public and available to anyone upon request, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.) Here, the City asserts that some of the data requested by Mr. Sorenson are not public data as classified by Minnesota Statutes, section 13.685.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.685 states, “Data on customers of municipal electric utilities are private data on individuals or nonpublic data,” but the data may be disclosed in specific circumstances. In addition, data are classified at the time a request is made. (See Minnesota Statute, section 13.03, subdivision 9.)</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong>Issue 1:</strong> Are data about future municipal electric utility customers classified as not public data by Minnesota Statutes, section 13.685?</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.685 classifies data on municipal electric utility customers as private or nonpublic data. “Customer” is not defined in Chapter 13, so the Commissioner looks to the common and approved usage of the word. (Minnesota Statutes, section 645.08). The American Heritage Dictionary of the English Language, 5th Edition, defines a customer as “[o]ne that buys goods or services, as from a store or business.” (See also <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267893" target="_blank">Advisory Opinion 03-047</a>.) Under this definition, one that has purchased or has a contract or agreement to purchase electric utility services is a customer of the municipal electric utility.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the City is preparing to provide electric utility services to Cloud HQ, which plans to construct a data center within the City’s electric utility service territory. Based on the information provided to the Commissioner, it does not appear that Cloud HQ is currently purchasing electric utility services from the City. Rather, the City and Cloud HQ are in conversation over how such service would be provided in the future.</p> <p xmlns="http://www.w3.org/1999/xhtml">Negotiating with the City does not make Cloud HQ a customer of the City’s electric utility services. Instead, whether Cloud HQ is considered a customer of the City’s electric utility service will depend on whether it has purchased electric utility services from the City or entered into a contractual relationship agreeing to purchase such services.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City referred to Cloud HQ as a “future customer” in its request to the Commissioner. This modification implies that Cloud HQ has not yet purchased electric utility services but intends to do so in the future. If Cloud HQ is a customer of the City’s electric utility services, data about it will be classified under section 13.685. However, until such purchase or agreement, these data are not about a customer and are presumptively public data under Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong>Issue 2:</strong> Are construction plans, communications, and similar data related to a city providing electric utility services to a future customer classified as not public data under Minnesota Statutes, section 13.685?</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request for an advisory opinion to the Commissioner, the City described various types of data related to its work in providing Cloud HQ electric utility services:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>All of the Electric Data are about providing Cloud HQ with electric utility service. The Electric Data that are responsive to Mr. Sorenson’s request exist solely because the City, in its role as an electric utility, will provide electric utility service to the Cloud HQ site. Put another way, if the site were located within the service territory of another utility, then the Electric Data would not exist. Given this fact, the City interpreted all of the Electric Data to be data on a municipal electric utility customer.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The City mentioned different types of data it maintains: “plans for the layout, construction, and cost allocations for electric utility facilities to be constructed exclusively to provide services to a future municipal utility customer” and “internal communications, [] communications with other utilities or agencies, and [] communications or negotiations with the future customer[].”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner does not have access to the data as described but cautions the City with application of section 13.685 to data it maintains because it is planning to provide electric utility service to a customer. Construction plans, communications, and documentation regarding the City’s work to provide utility services are not necessarily data about a specific customer. Instead, these data appear to be about the City’s work to provide electric utility services. Data about the City’s utility work are generally presumptively public. To the extent these data reveal data about an electric utility customer, then those data about the customer would be withheld as they are classified as private or nonpublic under section 13.685.</p> <p xmlns="http://www.w3.org/1999/xhtml">As noted in Issue 1, Cloud HQ was not a municipal electric utility service customer at the time of Mr. Sorenson’s data request. As a result, any construction plans, communications, and similar data related to providing Cloud HQ with utility services cannot be classified as not public data under section 13.685, as there are no data within those documents that are about a customer. Instead, these data are presumptively public unless another statutory section, temporary classification, or federal law classify the data as not public.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner would like to add one final comment. In its advisory opinion request materials, the City mentioned it had not signed a non-disclosure agreement with Cloud HQ. Even when a government entity signs a non-disclosure agreement with a private party, such an agreement may not limit access to public government data. Provisions of such agreements that are contrary to law are not enforceable. (See <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-536273" target="_blank">Advisory Opinion 22-006</a>.)</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Minnesota Statutes, section 13.685, does not classify data about future municipal electric utility customers as not public because they are not customers of municipal electric utilities.</li> <li>Construction plans, communications, and similar data related to a city providing electric utility services to a future customer are not classified as not public by Minnesota Statutes, section 13.685</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 9, 2025</p>6931942665942669112025-06-11T15:45:10Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-693178" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-06-09T19:40:39ZA school district asked about the classification of personnel data about a public official who resigned after a personnel investigation was completed but prior to the school board taking any official action based on the results of the investigation. The district also asked whether data contained in a resignation letter were classified as private. The Commissioner noted that section 13.43, subdivision 2(f) states that all data related to a complaint or charge against a local public official become public when the employee resigns while the complaint or charge is pending. In this situation, the public official resigned after an investigation was completed, but the school board had not yet decided whether it would discipline the employee or formally close the complaint. Therefore, the complaint was still pending at the time of the public official's resignation, and data related to the complaint became public. Additionally, the Commissioner opined that data within an employee's resignation letter are classified as private data under section 13.43, subdivision 4.June 9, 2025; Independent School District No. 93, Carlton 36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Independent School District No. 93, Carlton (District), asked for an advisory opinion from the Commissioner regarding the classification of personnel data it maintained about an employee who was a public official. Legal counsel for the former public official submitted comments on her behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This request follows a data request, dated April 24, 2025, submitted to the District by reporter Macklin Caruso. Mr. Caruso works for the Pine Journal. The District also received a similar data request from Jana Peterson, editor of the Pine Knot News, on April 30, 2025. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… On February 27, 2025, the District’s School Board authorized an investigation into concerns related to its former Superintendent. The District hired an outside investigator to conduct the investigation. On April 9, 2025, the outside investigator submitted his final report. The investigation was closed as of this date.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On April 18, 2025, the School Board conducted a special meeting, which included a closed session pursuant to Minnesota Statutes section 13D.05, subdivision 2(b) for preliminary consideration of allegations against the former Superintendent. The School Board did not take any official action with respect to the results of the investigation at this meeting. On April 20, 2025, the former Superintendent submitted a letter of resignation. The School Board accepted the former Superintendent’s resignation at its regular meeting on April 21, 2025.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On April 24, 2024, Mr. Caruso sent Board Chair Laura Nilsen a formal Minnesota Government Data Practices Act request for “the Carlton School Board’s investigation into a complaint against [the former Superintendent] and her resignation letter.” On April 30, 2025, Ms. Peterson sent a data request to Chair Nilsen seeking, among other things, “a copy of the investigation report into the complaint against [the former Superintendent.]”</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>What is the classification of data maintained by Independent School District 93, Carlton, relating to a complaint or charge about a public official who resigned after a personnel investigation was completed but prior to the school board taking any official action based on the results of the investigation?</li> <li>What is the classification of data contained in a resignation letter that the public official submitted to the school district?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.43, classifies data on individuals that a government entity maintains because the individual is or was an employee of a government entity. Section 13.43, subdivision 2 describes types of personnel data designated as public and subdivision 4 classifies all other personnel data as private.</p> <p xmlns="http://www.w3.org/1999/xhtml">Generally, only the existence and status of a complaint or charge against an employee are public data unless there is a final disposition of disciplinary action. (See section 13.43, subdivision 2(a)(4) and (5).)</p> <p xmlns="http://www.w3.org/1999/xhtml">However, section 13.43, subdivision 2(e)(4)(iv) identifies certain employees who work for local-level government entities, such as a school district, as “public officials,” which includes “individuals defined as superintendents … under Minnesota Rules, part 3512.0100.” All data relating to a complaint or charge against a local public official becomes public data if specific conditions are met.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subdivision 2(f) states that data relating to a complaint or charge against an employee who is identified under subdivision 2(e)(4) become public only if:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending; or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> What is the classification of data maintained by Independent School District 93, Carlton, relating to a complaint or charge about a public official who resigned after a personnel investigation was completed but prior to the school board taking any official action based on the results of the investigation?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, the District identified previous advisory opinions addressing data classification when a public official has resigned while a complaint was pending.</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267270" title="Opinion 15 006" target="_blank">Advisory Opinion 15-006</a>, a city’s finance director, who was a public official, resigned after the city completed a draft of an investigative report about a complaint against her but before the report was finalized. The Commissioner determined that all data related to the complaint were public because the finance director resigned while the complaint was still pending.</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-343324" title="Opinion 18 008" target="_blank">Advisory Opinion 18-008</a>, a county sheriff, who the county considered an employee for data practices purposes, informed the county he intended to retire after it received an external investigative report related to a personnel complaint against him. The Commissioner determined the retirement was akin to a resignation and opined that all data related to the complaint would be public if the complaint was still pending on the date the sheriff’s retirement became effective. However, the Commissioner noted that, given the facts at hand, the data in the investigative report would have been classified as private personnel data because the sheriff had not yet retired at the time the data requester had asked for access to the complaint data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As a result, the District seeks an advisory opinion on whether data regarding allegations against the former Superintendent in the April 9, 2025 investigation report is public under paragraphs (e) and (f) in Minnesota Statutes section 13.43, subdivision 2 when the former Superintendent resigned after an investigation was closed, but before the School Board took any official action based on the results of the investigation.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also offered the former public official whose data are at issue in this opinion an opportunity to submit comments regarding the classification of the data. In response, the official’s legal counsel wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he plain statutory language does not permit disclosure under the circumstances. [The public official] was the District’s Superintendent at the time the District received allegations and conducted an investigation. Therefore Minn. Stat. §13.43, subd. 2(f) applies. [She] resigned of her own volition after the District’s investigation was completed and closed, not while it was pending as required by the statute. Further, [she] was never disciplined based on the allegations or investigation findings. [The official] also never entered into a settlement agreement. The statutory language provides explicit scenarios for complaint and investigation information to become public—none of which are met here. These are the only avenues by which this information can become public; otherwise, the data remains private. Because [she] did not resign while a complaint was pending, receive any disciplinary action or enter into a settlement agreement, the data requested is not public and should not be disclosed by the District.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2(f) states that data related to a complaint or charge against a local public official become public if “the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment <em>while the complaint or charge is pending.</em>” (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The plain language of subdivision 2(f) indicates that the applicable determination of whether data related to a complaint or charge against a public official become public depends on the procedural status of the complaint or charge itself, which is not necessarily the same as the status of a personnel investigation into the public official’s conduct.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is not familiar with all processes that government entities may use when considering complaints or charges against employees. However, in many situations, a complaint against a government employee is not immediately resolved upon the completion of a personnel investigation report. Rather, the appropriate authority within a government entity must review the findings of the report to determine whether to take disciplinary action. A complaint remains pending in the interim between the completion of an investigation report and the entity’s determination of whether to take disciplinary action against the employee or to formally close the complaint without discipline. If a local public official resigns during this interim period, then data relating to the complaint or charge become public under the language of section 13.43, subd. 2(f)(1).</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the District has not suggested that the complaint against the public official was immediately resolved or closed without discipline upon the outside investigator submitting his final investigative report to the District on April 9. Instead, the District explained the School Board held a meeting on April 18, and it did not take any official action related to the investigation of the public official’s conduct. As a result, the complaint against the public official remained pending because the School Board had not determined whether it would discipline the public official or formally close the pending complaint. On April 20, the public official offered her resignation to the School Board, which it accepted the following day.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District did not offer any information to indicate that the School Board closed the pending complaint without discipline between its April 18 meeting and its decision to accept the public official’s resignation on April 21. Therefore, the complaint was still pending before the School Board at the time of the public official’s resignation. All data related to the complaint against the public official became public under section 13.43, subd. 2(f) upon the Board’s acceptance of her resignation.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> What is the classification of data contained in a resignation letter the public official submitted to the school district?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As to Mr. Caruso’s request for the former Superintendent’s resignation letter, the District’s position is that an employee’s letter of resignation is typically private under Minnesota Statutes section 13.43, subdivision 4. The Superintendent’s resignation letter made no reference to any complaint or charge against her. As a result, the District believes the letter is private data on her and is seeking the Commissioner’s confirmation of the same.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the District’s analysis.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2 does not designate data contained within an employee’s resignation letter as public data. Additionally, the District has not indicated that the resignation was the result of a settlement agreement that released any potential legal claims arising out of the conduct that was the subject of a complaint against the public official. (See section 13.43, subd. 2(f)(2).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the data in the resignation letter are classified as private under section 13.43, subd. 4.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Data maintained by Independent School District 93, Carlton, relating to a complaint or charge about a public official who resigned after a personnel investigation was completed but prior to the school board taking any official action based on the results of the investigation are public data because the official resigned while the complaint was still pending.</li> <li>Data contained in a resignation letter that the public official submitted to the school district are classified as private data under section 13.43, subdivision 4.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 9, 2025</p>6931782664062665162025-06-11T15:10:23Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-673980" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-03-27T19:04:25ZA member of the public asked whether a county board of commissioners violated the Open Meeting Law when all commissioners gathered to tour a county building with potential tenants. The Commissioner could not determine whether the board violated the OML because there was a factual dispute over whether the board held the tour immediately after it adjourned a regular meeting or the board announced the time and place of the tour, recessed its regular meeting, and reconvened its regular meeting for the tour. If the board adjourned its regular meeting, then the board violated the OML because it did not appropriately notice a special meeting of the commissioners gathering to tour the building. If the board announced the time and place of the meeting before recessing the meeting, then the board did not violate the OML when meeting for the tour because it met the requirements of section 13D.04, subdivision 4(a).March 27, 2025; Murray County Board of Commissioners36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On February 14, 2025, Joshua Malchow asked for an advisory opinion regarding whether a gathering of the Murray County Board of Commissioners (Board) violated the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">Malchow provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On February 4, 2025 the Murray County Board of Commissioners held a regularly scheduled (and duly posted) meeting at the Murray County Government Center (2500 28th Street, Slayton, MN) starting at 8:30AM. I virtually attended this meeting via Zoom and was present for the “Additions to the Agenda” portion of the meeting. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>There were a couple of additions to the agenda but none of them pertaining to a visit after the regular meeting to a County owned building in Slayton with members of the Wonderworld Daycare Center board of directors to explore options for a new childcare center in Slayton.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Multiple members of the board of directors for the Wonderworld childcare center and the childcare center director have confirmed that all five members of the Murray County Board of Commissioners were physically present at this location in Slayton as well as the County Administrator and discussion was held with all parties regarding options for building for Wonderworld. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This “tour/discussion” at the building located at 2989 Maple Road in Slayton, was not part of the posted agenda, and was not an addition to the agenda. The Board adjourned their meeting, did not recess their meeting, and proceeded to then meet at the facility located at 2989 Maple Road. In the audio [recording of the meeting] at 1:01:30 Board Chair Dennis Welgraven states, “I think that’s all we have today. I will adjourn the meeting.” …</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Malchow also provided links to the Board’s meeting agenda and audio recording of its February 4 meeting posted on the Murray County website as well as a copy of draft meeting minutes for the February 4 meeting. The meeting agenda, draft minutes, and recording that Malchow submitted did not contain any information or reference to Board members gathering to tour a building with daycare center staff on February 4.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Murray County Board of Commissioners comply with the Open Meeting Law when commissioners gathered to tour a county-owned building after its regular meeting on February 4, 2025?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. Although the Legislature did not define “meeting” in the OML, the Supreme Court defined meetings subject to the law as “those gatherings of a quorum or more members of the governing body … at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W. 2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">A public body must provide appropriate notice of its meetings as required by Minnesota Statutes, section 13D.04. Section 13D.04, subdivision 1 requires a public body to keep a schedule of its regular meetings on file at the body’s primary offices. Section 13D.04, subdivision 2 governs notices for special meetings, which are any meetings that a public body holds that do not appear on the schedule of regular meetings. Subdivision 2 requires a public body to post written notice of the date, time, place, and purpose of a special meeting on its principal bulletin board or the door of its usual meeting room at least three days before the meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, section 13D.04, subdivision 4(a) states, “If a meeting is a recessed or continued session of a previous meeting, and the time and place of the meeting was established during the previous meeting and recorded in the minutes of that meeting, then no further published or mailed notice is necessary.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Murray County Board of Commissioners held a regular meeting on February 4, 2025. When preparing the agenda for the meeting, County staff inadvertently did not include a planned walkthrough of a County-owned building with representatives from a childcare center located in Slayton, MN. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the conclusion of the February 4 meeting, Board Chair Dennis Welgraven commented “I think that’s all we have today. I will adjourn the meeting.” … What the recording does not show, and what Mr. Malchow did not see because he was not physically at the meeting, is that the County Administrator Carolyn McDonald promptly corrected Chair Welgraven’s statement and stated that the Board was recessing and would immediately reconvene at the ACE Building, which is located at 2989 Maple Road in Slayton. County Administrator McDonald’s comments were not captured in the audio recording of the meeting because the County employee who manages the recording of meetings stopped the recording before she corrected Chair Welgraven’s comment. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County Board has since taken action to correct the minutes from the February 4 meeting to reflect the discussion that took place before the Board recessed the meeting to reconvene at the ACE Building site. . . .</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County acknowledges that all five Commissioners then went to the ACE Building for the walkthrough with the WonderWorld representatives. The purpose of the walkthrough was simply to allow the WonderWorld representatives to see the building. . . .</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… While there was some confusion toward the end of the meeting when Chair Welgraven mentioned adjourning the meeting, the Board never voted to adjourn the meeting. Ms. McDonald promptly clarified in public that the Board would be going into a recess and then immediately reconven[e] at the ACE Building.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Board has taken action to clarify in its meeting minutes that the location and time of the recessed meeting was noted on the public record. The OML is silent as to when the Board is required to prepare meeting minutes. The only notice requirements for a recessed meeting is that the time and place of the recessed meeting be established</em> during <em>a previous meeting, which happened in this situation, and that the time and place of the recessed meeting is recorded in the minutes of that meeting, which the County has now done. … (Emphasis in original.)</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is limited to the information presented to her, and she cannot resolve factual issues. Here, there’s no dispute that the gathering of Board members to meet with daycare officials was subject to the OML’s requirements under the Minnesota Supreme Court’s definition of a “meeting” in <em>Moberg</em>. Both Malchow and the Board agree that the county commissioners conducting a walkthrough of the county-owned ACE Building with potential tenants involved discussing and receiving information related to the Board’s official business.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the question becomes whether the Board appropriately noticed the commissioners’ tour of the ACE Building with daycare officials. The notice the Board was obligated to provide under section 13D.04 depends on whether this tour was a special meeting or a continuation of the February 4 regular meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, the parties disagree on what occurred near the conclusion of the Board’s meeting at its regular location on February 4, and it is not clear whether the Board adjourned the regular meeting as Malchow indicated in his opinion request or the Board recessed to gather at the ACE Building later as it maintained in the response to the Commissioner.</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Board adjourned the February 4 meeting, then the Board members’ meeting with daycare officials to tour the ACE Building violated the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.04, subd. 2 requires a public body to provide a special meeting notice when it holds a meeting that does not appear on its schedule of regular meetings. That notice must be posted on the public body’s principal bulletin board or usual meeting room door at least three days in advance of the special meeting and include the date, time, place, and purpose of the meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Neither Malchow nor the Board have suggested that the tour appeared on the schedule of regular meetings or that a special meeting notice was posted regarding the tour of the ACE Building with the daycare staff. Therefore, the Board violated the OML if it adjourned its February 4 regular meeting, as it appeared to do in the original recording and meeting minutes, because the subsequent tour at the ACE Building would have been an unnoticed special meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, if, as the Board contends, it announced the time and place of the tour before recessing the February 4 meeting, then the Board members reconvening to tour the ACE Building with daycare officials did not violate the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.04, subd. 4(a) contemplates situations when a public body may recess a regular meeting and then reconvene elsewhere. The subdivision requires a public body to establish the time and place it intends to reconvene the meeting before recessing, and that information must be recorded in the meeting minutes.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board maintains it announced to in-person meeting attendees that members would reconvene the February 4 regular meeting at the ACE Building after a short recess despite initial confusion over Chair Welgraven’s announcement that the meeting was adjourned. The Board also explained that it corrected the approved meeting minutes of its February 4 meeting to document the recess and the tour, which happened after it received notice of Malchow’s advisory opinion request. Therefore, the Board appears to have complied with the OML if it announced the time and location of the tour when recessing and reconvening the February 4 meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has an additional note about the records of the Board’s February 4 meeting. At least some of the confusion regarding what occurred during the meeting appears to be the result of the Board not clearly documenting in the meeting agenda or audio recording that all county commissioners planned to tour the ACE Building on February 4. Additionally, the February 4 meeting minutes did not officially document the time and place of the reconvened meeting until the Board took action to correct those previously approved minutes.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner reminds the Board that, in addition to its OML obligations, it also has obligations under the Official Records Act, Minnesota Statutes, section 15.17, to create records that document its official business. The purpose of this requirement is to ensure that government entities and public bodies have “a full and accurate knowledge of their official activities.” (See section 15.17, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The OML does not require a public body to create meeting agendas or meeting minutes for a regular meeting. However, many public bodies do create and maintain such agendas and minutes in order to meet the requirements of the Official Records Act. (See, <em>e.g.</em>, Advisory Opinion 04-059.) When creating these records, a public body should take care to ensure the records do indeed provide full and accurate information about the body’s activities.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner encourages the Board to review its processes and procedures related to the creation of its records to confirm that it is accurately documenting its activities as required by the Official Records Act. A lack of complete and accurate official records will likely lead only to further confusion for the public in the future.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot determine whether the Murray County Board of Commissioners complied with the Open Meeting Law when commissioners gathered to tour a county-owned building on February 4, 2025.</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Board adjourned its February 4 regular meeting, then the Board violated the Open Meeting Law because it did not appropriately notice a special meeting as required by section 13D.04, subdivision 2.</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Board announced the time and place and recorded in the meeting minutes where it would reconvene before recessing the February 4 meeting, then the Board did not violate the Open Meeting Law because it met the requirements of section 13D.04, subdivision 4(a).</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 27, 2025</p>6739802025-04-02T19:30:24Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-672247" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2025-03-11T19:03:58ZA member of the public asked whether a Township Board violated the Open Meeting Law when it selected a new Supervisor outside of an open meeting. The Board filled scoring sheets for candidates during a meeting, and those sheets were later tabulated to select the individual to fill the open position. The Commissioner opined that as the interviews were conducted at an open meeting, the scoring sheets were required to be public at the meeting. March 11, 2025; Woodrow Township Board of Supervisors36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Deb Scheibel asked for an advisory opinion regarding the Woodrow Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board submitted comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On December 12, 2024, the Board held a special meeting to interview candidates for an open supervisor position. While interviewing the three candidates, the two Supervisors and the Town Clerk filled out score sheets for each candidate. These scoring sheets were sealed and provided to the Town Clerk at the end of the interviews.</p> <p xmlns="http://www.w3.org/1999/xhtml">At the next meeting of the Board on January 9, 2025, the individual receiving the highest score from the scoring sheets was present and appointed to fill the vacancy. This appointment was done by a public vote. Scheibel stated that “[d]uring the January meeting or any other time it was not disclosed how the Supervisors and the Clerk voted.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Woodrow Township Board of Supervisors comply with the Open Meeting Law when it made a final decision on appointing a new board supervisor outside of an open meeting?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The Legislature did not define “meeting” in the OML, but the Minnesota Supreme Court has determined that a meeting subject to the OML “are those gatherings of a quorum or more members of the governing body … at which members discuss, decide or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML will be interpreted in favor of public access and transparency. Specifically, in <em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729 (Minn. 2002), it noted that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” The Court also stated the OML “will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by [the law]” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W. 2d 1, 6 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 4(a) specifically addresses member votes, stating:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The votes of the members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal or minutes.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Court of Appeals discussed an earlier version of this subdivision in <em>Mankato Free Press v. City of North Mankato</em>, 563 N.W. 2d 291 (Minn. Ct. App. 1997). In that case, a city council took a straw vote at an open meeting to narrow a list of job candidates by having council members write their top choices on a piece of paper. The Council did not make the results of the straw vote public during the meeting, but did record the results in the meeting minutes, which were available at a later date. In finding the council violated the OML, the court wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A city council meeting is not really “open” to the public if the council is conducting its voting in secret. . . . Secret voting denies the public an opportunity to observe the decision-making process, to know the council members’ stance on issues, and to be fully informed about the council’s actions. Mankato Free Press, 563 N.W. 2d at 295, 296.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the Board stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . Minnesota Statutes 367.03 Subd. 6(a) states that, “when a vacancy occurs in a town office, the town board shall fill the vacancy by appointment.” No additional guidance or requirements regarding the appointment process are provided in statute. In the name of transparency and fairness, the town board decided to post notice of the vacancy in the official newspaper, and to conduct interviews with those that submit their names for consideration at a special meeting to be held on December 12, 2024 at 6:00 PM.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On December 12, 2024, interviews were held with three people during a special meeting, which was posted and available to the general public to attend. . . . The two remaining Supervisors and the Town Clerk all had score sheets that had been prepared to independently rank each candidate’s responses and score them. Upon the conclusion of the three interviews, each ranking sheet was placed into a sealed envelope and given to the town clerk.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Between the December 12, 2024, Township meeting and the January 9, 2025, Township meeting, the Town clerk and the Town Treasurer, both elected positions, opened each of the envelopes and tallied the results. The reasons these were not tallied at the December 12, 2024, meeting was simply for efficiency and to allow for accurate calculations.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . At the January 9, 2025, Township meeting, Alex Haagensen was appointed to fill the vacancy. This was done by a unanimous vote made at a public meeting and in view of all in attendance. Minnesota Statute 367.03 Subd. 6(a) does not require any specific process – only that the vacancy be filled by appointment. That vacancy was filled by appointment at a regular Township meeting in view of all those in attendance.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The score sheets that were [filled] out by [the Supervisors and Clerk] are all on file in the Clerk’s office. These are public documents, and all citizens are welcome to view them by a simple request to the Township Clerk.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that the law does not prescribe a specific process for township boards to fill a vacancy, and the process the Board followed may allow for some efficiencies and accurate calculations. However, the process the Board created did not comply with the requirements of the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires public bodies to conduct most official business during an open meeting, and votes conducted during an open meeting must be done in public and recorded in the minutes or journal of votes. Otherwise, members of the public attending a meeting cannot understand how individual members of a public body voted on a particular issue, and the meeting is not open under the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Board must appoint a new supervisor when a position on the Board becomes vacant, which is part of its official business. The Board chose a process where candidates would be interviewed and evaluated at a meeting. As none of the exceptions to close a meeting applied, the OML required that any discussion or decisions occur at an open meeting. In its comments, the Township noted that the appointment of the individual to the supervisor position was conducted at the meeting on January 9. However, the <em>selection</em> of this individual occurred outside an open meeting. Specifically, it appears the decision by the Board occurred when the scoring sheets from the December 12 meeting were tallied, which occurred at some point between December 12 and January 9. Because these scoring sheets determined who the Board would appoint to the position, the sheets communicated the vote of each Supervisor and were required to be public at the December 12 open meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates that the scoring sheets may be available to requesters outside a meeting. However, the obligation to vote publicly in the meeting remains, and so the results of those sheets needed to be disclosed during the December 12 meeting.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Woodrow Township Board of Supervisors did not comply with the Open Meeting Law when it made a final decision on appointing a new board supervisor outside of an open meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 11, 2025</p>6722472663452025-04-02T19:30:20Z266258266272266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-645187" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2024-10-03T19:30:36ZA member of the public asked whether a city responded appropriately to a request for public data that he made while using a pseudonym. The City had informed the requester that it would not provide access to data until he identified himself. The Commissioner opined that the city did not respond appropriately because Minnesota Statutes, section 13.05, subdivision 12 prohibits government entities from requiring data requesters to identify themselves as a condition to obtain access to public data.October 3, 2024; City of Kasota36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On August 19, 2024, Chris Hanson (Hanson) asked for an advisory opinion regarding his right to access data from the City of Kasota (City) under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. The City’s legal counsel provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">In an email to the City Clerk dated August 12, 2024, Hanson requested that the City allow him to inspect various public data under section 13.03, subdivision 3, including data documenting different City expenditures, resolutions, employment policies, hiring and termination processes, service contracts, and receipts and invoices over the course of several years. Hanson did not directly identify himself in the data request. Rather, he sent the email from a non-identifying email address with a displayed name of “anonymous,” and he signed the data request as “Concerned citizens.”</p> <p xmlns="http://www.w3.org/1999/xhtml">On August 13, the City Attorney responded to the data request in a letter, writing:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Since Concerned Citizens is not an individual as defined by Minnesota Statute Chapter 13, the City of Kasota is unable to honor your request. You will note that the statute you quoted – M.S. § 13.03, Subd. 3 requires that the request for access to data must be made by a person. Since Concerned Citizens is not a person as defined by statute, until such time as you are able to identify a person as defined by Minnesota Statute Chapter 13, the City of Kasota is unable to honor your request.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On August 14, Hanson sent another email to the City Attorney and City Clerk from the non-identifying email address restating his data request. He also included the language of section 13.02, subdivision 10, which defines “person” for the purposes of the Data Practices Act. Hansen signed this email as “citizen of kasota” [sic].</p> <p xmlns="http://www.w3.org/1999/xhtml">On August 15, the City Attorney responded by email, writing:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In my opinion, the term “Concerned Citizen” fails to identify a person as defined by the statute you quote. Since the statute you quote MS 13.03 Subd. 3. (c), allows the City to require the requesting person to pay the actual costs of searching and retrieving government data, it is necessary for you to identify yourself and provide the City with a billing address. If you disagree with my opinion, you are welcome to request a Court Order finding that “Concerned Citizen” is in fact a person as defined by statute.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">That same day, Hanson responded through the non-identifying email address by restating his request and writing, in part:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The city of Kasota and the designated authority in charge of the MGDPA is not working in good faith to provide this data. I have identified myself as a resident of the state of MN, and Citizen of Kasota. I must have reasonable access to this data while remaining anonymous. I will provide a billing address once a cost estimate will be provided.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On August 16, the City Attorney sent an email again noting that he was unable to identify “Concerned Citizen” as a person under the law. He added, “If you provide me with your legal authority, including cited case law, which states that ‘Concerned Citizen’ is a person defined by statute, I will reconsider my position.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Later that day, Hanson responded through the non-identifying email, writing, “I choose to identify myself at this time. I am a concerned citizen, and I am requesting the data in this request.” Hanson identified himself as “C Hanson” and included an address. Hanson then re-stated his data request.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Kasota respond appropriately to a request for public data when it informed the requester that it would not provide access to data until the requester provided identifying information about himself?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statues, section 13.02, subdivision 10 defines a “person” as “any individual, partnership, corporation, association, business trust, or a legal representative of an organization.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.03, subdivision 2(a) requires a government entity to establish procedures to respond in an appropriate and prompt manner and within a reasonable time when receiving a data request from a person who wants access to public data. (See also Minnesota Rules, part 1205.0300.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.03, subdivision 3 prohibits government entities from charging any fees when a person requests to inspect public data. However, government entities may charge specific copy cost fees if the person requests copies of public data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, section 13.05, subdivision 12 states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>“Unless specifically authorized by statute, government entities may not require persons to identify themselves, state a reason for, or justify a request to gain access to public government data. A person may be asked to provide certain identifying or clarifying information for the sole purpose of facilitating access to the data.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>It is the City’s position that once Mr. Hanson clearly identified himself with a billing address and restricted his original request to the request to observe the documents in person, the City promptly and in good faith complied with his Data Practices request. It is the City’s position that it followed the statute by requiring identification in order to clarify that Mr. Hanson was in fact an individual and understood that he had a financial obligation by statute.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees that the City met its obligations under the Data Practices Act.</p> <p xmlns="http://www.w3.org/1999/xhtml">The plain language of section 13.05, subd. 12 prohibits government entities from requiring data requesters to identify themselves as a condition to obtain access to public data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the City repeatedly informed Hanson that it would not respond to his data request until he provided more identifying information about himself than “Concerned citizens” or “citizen of kasota,” and it agreed to begin processing Hanson’s request only after he eventually identified himself despite his several objections.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City’s refusal to respond to Hanson’s data request violated the language of section 13.05, subd. 12, which clearly allows a “person” — which is defined as broadly including both individuals and other types of non-individual organizations under the language of section 13.02, subd. 10 — to request data using a pseudonym.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Commissioner agrees that the City can recover specific costs when providing a requester with copies of public data. However, Hanson stated in his August 12 data request that he was “asking to inspect this data under Minnesota statutes Section 13.03, subdivision 3.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Under section 13.03, subd. 3(a), government entities “may not assess a charge or require the requesting person to pay a fee to inspect data,” and it was not appropriate for the City to require that Hanson first provide identifying information so it could calculate copy costs.</p> <p xmlns="http://www.w3.org/1999/xhtml">Even if Hanson had requested copies, the City’s ability to charge copy costs does not override the Data Practices Act’s prohibition on a government entity requiring requesters to identify themselves in order to access public data. Rather, section 13.03, subd. 3, read together with section 13.05, subd. 12, requires a government entity to have procedures in place that would allow pseudonymous data requesters to pay for and obtain copies of public data in an appropriate and prompt manner without the need for requesters to identify themselves.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the City’s response to Hanson’s request for public data was not appropriate when it declined to provide access to data until he disclosed identifying information about himself.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Kasota did not respond appropriately to a request for public data when it informed the requester that it would not provide access to data until the requester provided identifying information about himself.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 3, 2024</p>6451872662772025-04-02T19:30:57Z266258266264<custom:Link urlOnly="true" type="Component" destination="tcm:36-640096" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2024-08-06T17:00:00ZA school district asked whether emails and similar written correspondence regarding school district business that were sent between school board members were classified as private data under Minnesota Statutes, section 13.601, subdivision 2. The Commissioner opined that the private classification under section 13.601, subd. 2 applied to communications between elected officials and members of the public rather than just between elected officials. Additionally, section 13.601, subd. 2 does not apply to elected officials' correspondence when they are communicating in an official capacity. Therefore, school board members' emails are presumptively public unless specific data are classified as not public under another section of the Data Practices Act, other state statute, or federal law.August 6, 2024; ISD 11, Anoka-Hennepin36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On July 3, 2024, Independent School District 11, Anoka-Hennepin (District), requested an advisory opinion from the Commissioner regarding the classification of data contained within written correspondence between school board members under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 30, 2024, the president of the District’s teacher’s union requested access to all emails exchanged between three individual board members regarding the school budget for the 2024-25 school year and/or emails that included various search terms (e.g. systemic racism, anti-racist, whiteness, etc.). After receiving the request, the District’s General Counsel had separate conversations with the union president and the union’s attorney (Education Minnesota) seeking clarification on the request. During these discussions, the District raised concerns that email correspondence exchanged between individual board members may constitute private data under Minnesota Statute.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District also provided a copy of the data request for the school board members’ emails.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Are emails and similar written correspondence regarding school district business sent between individual school board members classified as private data under Minnesota Statutes, section 13.601, subdivision 2?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.01, subdivision 3 establishes that government data are presumptively public “unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.601, subdivision 2 states, “Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or recipient.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has addressed section 13.601, subd. 2 in several previous opinions, noting that the private classification applies only when the correspondence is between members of the public and elected officials. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267991" title="Advisory Opinion 97-002" target="_blank">97-002</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-268026" title="Advisory Opinion 97-014" target="_blank">97-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267360" title="Advisory Opinion 98-052" target="_blank">98-052</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266869" title="Advisory Opinion 99-013" target="_blank">99-013</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267742" title="Advisory Opinion 02-013" target="_blank">02-013</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Commissioner has opined that correspondence between an elected official and an individual who is also an elected official or employee of a government entity cannot be classified as private under section 13.601, subd. 2, unless the individual was acting in a personal capacity as a private resident rather than in an official capacity as an employee. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267360" title="Advisory Opinion 98-052" target="_blank">98-052</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267479" title="Advisory Opinion 07-004" target="_blank">07-004</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267905" title="Advisory Opinion 11-019" target="_blank">11-019</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Lastly, the private classification contained in section 13.601, subd. 2 is limited to correspondence between elected officials and “individuals,” meaning that the classification does not apply when a person is acting on behalf of an organization. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266863" title="Advisory Opinion 10-023" target="_blank">10-023</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-355746" title="Advisory Opinion 18-013" target="_blank">18-013</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… The Department of Administration … has rejected the notion that a person writing on behalf of an organization, corporation or other “artificial persons” can be considered to be an individual for the purposes of Minn. Stat. 13.601 Subd. 2. It has ultimately opined that, “correspondence between [an elected official] and a party that communicates on behalf of [an organization] is presumptively public.” …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The question in this instance, however, is whether individual school [board] members are in all instances deemed to be communicating on behalf of the school district or whether they can act as individuals when communicating their own personal thoughts about issues affecting the schools. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… Just as a constituent might express through correspondence their interests and concerns about the school district to an individual school board member and have an expectation of privacy in the communication, it can be presumed that school board members, acting in an individual capacity, can expect that they can have similar communications. To suggest otherwise is to conclude that school board members never have agency to act as individuals and they are always acting as agents of the District when they send or receive correspondence that relates to the school district.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>While the Department of Administration has issued decisions that address the scope of communications covered by Minn. Stat. 13.601 Subd. 2, the decisions do not draw a distinction between instances where an elected official is acting in an individual capacity – as compared to a representative compacity. See</em> Advisory Opin. 02-013 (Pipestone-Jasper) <em>and</em> Advisory Opin. 98-052 (Clay County). <em>As a result, these cases are distinguishable. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The fundamental question in this case is whether a school board member can act as an individual and have an identity separate from the board as [a] whole. We believe that the individual board members can act outside of their representative/elected capacity – even when discussing school district concerns. Important in this analysis is that Minnesota Statute directly acknowledges, “[t]he care, management, and control of independent school districts</em> is vested in a board of directors<em>, to be known as the school board.” Minn. Stat. 123B. 09 (emphasis added). …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… When an elected official is not clothed with the authority to represent the entire board or to act independent in their representative/elected role – they presumptively retain the right to act as an “individual” under Minnesota Statute 13.601. Had the legislature intended to remove from elected officials the capacity to act as an individual it would have expressly stated as much. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The foregoing analysis supports the conclusion that a school board member can correspond with another school board member as an individual on matters related to the school district and that such correspondence can be maintained as private data under Minn. Stat. 13.601 Subd. 2.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner consistently has opined that the private classification under section 13.601, subd. 2 applies only to correspondence between elected officials and members of the public. This interpretation is supported by the language of the subdivision itself, which distinguishes between “individuals” and “elected officials.” If the Legislature intended to classify correspondence that was only between elected officials as private, the inclusion of “individuals” would be unnecessary. The plain language of subdivision 2 indicates that the correspondence must be between an elected official and someone who is not acting as an elected official in order for the private classification to apply.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the District’s argument that the determination of whether section 13.601, subd. 2 applies to specific correspondence should be based on a distinction between a school board member acting as an individual board member rather than on behalf of the entire board is not persuasive. Although school board members may not represent the entire board, individual members still act in an official capacity outside of school board meetings.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, past advisory opinions have explained that the appropriate analysis is for an entity to determine whether the elected official or employee sent the correspondence in a personal capacity rather than in an official capacity. In drawing this distinction, the Commissioner noted that the burden is on the elected official or government entity to explain why the content of correspondence was not work-related. (See Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267360" title="Advisory Opinion 98-052" target="_blank">98-052</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the local teacher’s union requested emails exchanged between elected school board members that referenced the “2024-2025 budget” or contained specific key words, including “systemic racism,” “anti-racist,” and “whiteness,” among several other terms.</p> <p xmlns="http://www.w3.org/1999/xhtml">As a result, the private classification under section 13.601, subd. 2 would apply only if board members were communicating in their personal capacities rather than in their official capacities. In its opinion request, the District described the correspondence at issue as “regarding some aspect of school district business” and “related to the school district,” which indicates that the board members were acting in their official capacities rather than in personal capacities when sending the emails. Thus, the District has not met its burden of explaining why the content of the correspondence was not work-related.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that there may be limited, unique situations when section 13.601, subd. 2 applies because an elected board member wrote to other board members in a personal capacity, but that is not the situation here.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the emails and similar written correspondence about school district business sent between school board members cannot be classified as private data under section 13.601, subd. 2. Rather, the data in the emails are presumptively public unless specific data are otherwise classified as not public under the Data Practices Act, other state statute, or federal law.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Emails and similar written correspondence regarding school district business sent between individual school board members are not classified as private data under Minnesota Statutes, section 13.601, subdivision 2. The data in the emails are presumptively public unless another section in the Data Practices Act, state statute, or federal law would classify the content of the emails as not public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">August 6, 2024</p>6400963793082662682672242024-08-07T04:30:32Z266258513961<custom:Link urlOnly="true" type="Component" destination="tcm:36-638156" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2024-07-22T17:00:00ZA member of the public asked whether a city responded appropriately to a request for its data access policies. The Commissioner opined that the city did not respond appropriately because it appeared that the city did not have data access policies at the time of the request. July 22, 2024; City of Fertile36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Cheryll Reitmeier (Reitmeier) requested an advisory opinion regarding the City of Fertile’s (City) response to a request for its written data access policies, as required by Minnesota Statutes, section 13.025. The City’s legal counsel provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 23, 2024, Reitmeier hand-delivered a letter to the City, which was received by the deputy city administrator, requesting a copy of its data access policies. As of June 8, 2024, the City had not yet provided Reitmeier with a copy of its policies.</p> <p xmlns="http://www.w3.org/1999/xhtml">In her comments to the Commissioner, Reitmeier noted that another member of the public had also requested the City’s data access policies during two separate City Council meetings on November 13, 2023, and April 8, 2024. However, the other member of the public had not yet received a copy of the policies either.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Fertile respond appropriately to a request for a copy of its data access policies required under Minnesota Statutes, section 13.025?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.025, subdivision 2 requires a government entity’s responsible authority to prepare “a written data access policy” that informs members of the public about their rights under the Data Practices Act as well as how to request access to public data that the entity maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">Meanwhile, section 13.025, subdivision 3 requires the responsible authority to “prepare a written policy of the rights of data subjects under section 13.04 and the specific procedures used by the government entity for access by the data subject to public or private data on individuals.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Both subdivisions require the responsible authority to update the policies “no later than August 1 of each year, and at any other time as necessary to reflect changes in personnel, procedures, or other circumstances that impact the public’s ability to access data.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, section 13.025, subdivision 4 states that these policies must be made “easily available to the public by distributing free copies to the public or by posting the policies in a conspicuous place within the government entity that is easily accessible to the public or by posting it on the government entity’s website.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has addressed these requirements in past advisory opinions, noting that they have been in place since 2001. Further, she has opined that the policies should be available in such a manner that the public would not need to ask for them. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-514480" title="Advisory Opinion 22-001" target="_blank">22-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-375057" title="Advisory Opinion 19-002" target="_blank">19-002</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266427" title="Advisory Opinion 13-007" target="_blank">13-007</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266477" title="Advisory Opinion 05-003" target="_blank">05-003</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267246" title="Advisory Opinion 04-049" target="_blank">04-049</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the City wrote that it had a small staff that has received many data requests recently and has incurred substantial expenses when attempting to respond appropriately to these requests. The City added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>With regard to this data request, the City has been unable to locate its data access policy and has been working on updating their policy. The reason the City did not respond sooner to the data request was because it wanted to establish its new policy prior to responding. The City of Fertile is planning to adopt its new data access policy at their next regularly schedule council meeting on July 8, 2024.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As indicated above, the requirement for a government entity to have data access policies for the public and for data subjects is long-standing. Additionally, individuals should be able to easily find these policies in a public location at the entity’s offices or on the entity’s website.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates the City’s update that it planned to adopt a new policy during its July 8 city council meeting. However, the City violated the requirements of section 13.025 because it appears no data access policies existed when Reitmeier made her request on May 23.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Fertile did not respond appropriately to a request for its data access policies required under Minnesota Statutes, section 13.025.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">July 22, 2024</p>6381563750582024-07-23T04:55:43Z266258266262<custom:Link urlOnly="true" type="Component" destination="tcm:36-631737" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2024-07-15T17:00:00ZA data subject asked whether the Department of Human Services complied with section 13.04, subd. 4 when it extended a deadline to respond to a challenge that data about him were accurate and complete. The Commissioner noted that section 13.04, subd. 4(c) requires a government entity to respond to a data challenge within 30 days by either correcting the disputed data or informing the data subject that it has determined the data are correct. The plain language of the subdivision does not permit an entity to extend this 30-day deadline. Therefore, the Commissioner opined that DHS did not comply with the Data Practices Act when it extended the deadline to respond to the data subject's challenge.July 15, 2024; Minnesota Department of Human Services36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">X (a pseudonym used according to section 13.072, subdivision 4) requested an advisory opinion about his rights regarding the Department of Human Services’ response to a challenge to the accuracy and completeness of data about him. X made this challenge under Minnesota Statutes, section 13.04, subdivisions 4 and 4a, and the Minnesota Sex Offender Program (MSOP) maintained the challenged data. DHS operates MSOP, and DHS’ legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On February 20, 2024, X submitted a challenge contesting the accuracy and completeness of data that MSOP maintained about him to the program’s executive director under section 13.04, subds. 4 and 4a. In a letter dated March 1, the executive director confirmed that she had received X’s challenge on February 29 and wrote that the challenge was under review.</p> <p xmlns="http://www.w3.org/1999/xhtml">In a letter dated March 29, the executive director informed X that MSOP was “extending this investigation of data until April 12, 2024.”</p> <p xmlns="http://www.w3.org/1999/xhtml">On April 20, X wrote to the executive director to notify her that he had not yet received a response to his data challenge, adding that he believed the law required MSOP to respond to his challenge within 30 days.</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 6, X received a letter from the executive director, which was dated April 12, that indicated MSOP was further extending its investigation until April 29.</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 13, X received a letter from the executive director that provided a determination on the accuracy and completeness of the data he had challenged. The letter was dated April 29, and the executive director’s digital signature was dated May 6.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Department of Human Services comply with Minnesota Statutes, section 13.04, subdivision 4, when it extended a deadline to respond to X’s challenge to the accuracy and completeness of data maintained by the Minnesota Sex Offender Program?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.05, subdivision 5(a)(1) requires each responsible authority of a government entity to “establish procedures to assure that all data on individuals is accurate, complete, and current for the purposes for which it was collected.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Meanwhile, section 13.04, subdivision 4 provides individuals with the right to challenge the accuracy and/or completeness of data about themselves that a government entity maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">To exercise this right, individuals must notify the appropriate government entity official that they believe specific data maintained by the entity are inaccurate or incomplete and describe the nature of their disagreement with the data’s content.</p> <p xmlns="http://www.w3.org/1999/xhtml">(Note: Section 13.04, subdivision 4a requires an individual disputing the accuracy and completeness of data maintained by MSOP to submit the challenge to the data practices compliance official of DHS, and this official must respond to the challenge as required by section 13.04, subd. 4. The MSOP executive director’s correspondence to X indicates she is serving as the data practices compliance official for the purposes of section 13.04, subd. 4a.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.04, subdivision 4(c) states:</p> <p xmlns="http://www.w3.org/1999/xhtml">Upon receiving notification from the data subject, the responsible authority shall within 30 days <em>either:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) correct the data found to be inaccurate or incomplete and attempt to notify past recipients of inaccurate or incomplete data, including recipients named by the individual; or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) notify the individual that the responsible authority has determined the data to be correct. If the challenged data are determined to be accurate or complete, the responsible authority shall inform the individual of the right to appeal the determination to the commissioner as specified under paragraph (d). Data in dispute shall be disclosed only if the individual’s statement of disagreement is included with the disclosed data.</em> (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In short, section 13.04, subd. 4(c) requires a responsible authority to respond to a data challenger within 30 days by either correcting challenged data or notifying the individual that the entity has determined the challenged data are correct. The plain language of the statute does not provide an entity with the power to extend this 30-day deadline.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, DHS confirmed it received X’s challenge on February 29, 2024, in its March 1 letter to him. The calculated 30-day deadline to respond would have fallen on Saturday, March 30, but Minnesota Statutes, section 645.15 notes that when the last day of a statutorily imposed deadline “falls on Saturday, Sunday, or legal holiday, that day shall be omitted from the computation.” Therefore, the deadline for DHS to respond to X’s data challenge was Monday, April 1.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, DHS twice informed X it was delaying its response without reference to any statutory authority that permits such an extension. DHS did not provide a determination on X’s data challenge until it sent a letter dated April 29, signed on May 6, and received by X on May 13. All these dates were beyond the April 1 deadline as required by section 13.04, subd. 4(c).</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response, DHS requested that the Commissioner not issue an advisory opinion because of her longstanding practice of declining to issue an opinion when the applicable matter is pending before a court or is the subject of a judge’s order or decision.</p> <p xmlns="http://www.w3.org/1999/xhtml">X currently has an appeal before the Commitment Appeal Panel (CAP), which was established by the Minnesota Supreme Court under Minnesota Statutes, section 253B.19, subdivision 1. Section 13.072, subdivision 1(c) gives the Commissioner the authority to decline an advisory opinion request within five business days of receipt, or, if she does not, she must issue an opinion. A requester may withdraw a request for an opinion at any time. X did not withdraw his request and therefore the Commissioner is obligated to issue this opinion.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the Commissioner is unaware of any authority that would allow the CAP to extend the statutory deadline required by section 13.04, subd. 4(c), nor does it appear that the timing of DHS’ determination is at issue in X’s CAP proceeding. Thus, this opinion is unaffected by the appeal before the CAP, and this opinion does not reach any conclusion on whether the data at issue in those proceedings are accurate and complete.</p> <p xmlns="http://www.w3.org/1999/xhtml">As a result, DHS did not comply with the requirements of section 13.04, subd. 4 when it extended the amount of time it would take to respond to X’s data challenge and failed to provide X with a determination about the accuracy and completeness of data within 30 days.</p> <p xmlns="http://www.w3.org/1999/xhtml">Lastly, DHS may want to review its internal procedures required by section 13.05, subd. 5(a)(1) to ensure that “all data on individuals is accurate, complete, and current for the purposes for which it was collected.” If DHS cannot meet the 30-day deadline to respond to a data challenge in the future, it may also be failing to meet its obligations under section 13.05, subd. 5.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Department of Human Services did not comply with Minnesota Statutes, section 13.04, subdivision 4, when it extended a deadline to respond to X’s challenge to the accuracy and completeness of data maintained by the Minnesota Sex Offender Program.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">July 15, 2024</p>6317372663052673082024-07-16T13:15:15Z266258266282266284<custom:Link urlOnly="true" type="Component" destination="tcm:36-599702" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2023-11-14T18:00:00ZA member of the public asked whether a city council violated the Open Meeting Law when it closed a meeting on the basis of attorney-client privilege to discuss a contract it had with a local school district and decide whether to break it. The Commissioner opined that the council violated the OML because a public body cannot close a meeting for attorney-client privilege purposes when there was no threatened or pending litigation. The Commissioner noted the threat that litigation may be a result of a public body deciding a matter one way or the other is not sufficient justification to close a meeting, and therefore the public's right to hear the discussion about the contract outweighed the need for absolute confidentiality.November 14, 2023; Woodbury City Council36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">William Brown requested an advisory opinion regarding the Woodbury City Council’s (Council) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Council provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On September 6, 2023, the Council held a regular meeting. In his comments, Brown stated that during this regular meeting the Council went into closed session “to discuss potential litigation strategy regarding the contract with ISD 833 to provide School Resource Officer services with the City Attorney.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Brown provided details from ISD 833, indicating that there was no threatened litigation at the time of the September 6, 2023 meeting. He notes that on September 5, 2023, the City and Superintendent discussed the contract at issue. Brown stated that the Superintendent did not threaten litigation, but “wanted to know what [the City of Woodbury] [was] doing as it impacted SROs in 2 of her schools.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, the Council stated,</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Woodbury reviewed its SRO contract with District 833 and quickly ascertained that as of August 2023, even if Woodbury were to immediately provide notice of its intent and desire to stop the SRO services, as a practical matter that contractual notice would not take effect and the City had no direct legal entitlement to cancel its SRO services under the contract until December 31, 2024. As a result, the City did not have a practical means of pulling its SROs out of the ISD 833 high schools absent either: (1) mutual agreement and consent from ISD 833, or (2) by engaging in a purposeful and known breach of contract. City staff was understandably concerned that ISD 833 would not mutually agree to the cancellation of SRO services and that pulling of SROs may well result in breach of contract litigation with ISD 833, so as a result, City staff preemptively placed a potential closed session discussion on the City Council’s agenda.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council indicated that in closed session, it “opted to temporarily suspend its SRO activities under contract with ISD 833 until such time there could be greater legal clarity or a legislative amendment.” The Council subsequently informed the school district of its decision to suspend the contract.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council noted that after additional guidance from the Attorney General’s Office and the League of Minnesota Cities, the Council has since “directed that the City Staff should reactivate its SROs and send them back into the ISD 833 high schools.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Woodbury City Council comply with the Open Meeting Law when it went into closed session on September 6, 2023, on the basis of attorney-client privilege pursuant to Minnesota Statutes, section 13D.05, subdivision 3(b)?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. One exception to this general rule is that public bodies may close a meeting based on attorney-client privilege. (Minnesota Statutes, section 13D.05, subd. 3(b).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court established the test for the appropriate application of the attorney-client privilege exception:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>To determine whether the attorney-client privilege exception to the Open Meeting Law applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law. The exception applies when this balancing dictates the need for absolute confidentiality.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 732 (Minn. 2002) (<em>Prior Lake American</em>). (See also <em>Minneapolis Star and Tribune v. the Housing and Redevelopment Authority</em>, 251 N.W.2d 620 (Minn. 1976) (<em>HRA</em>).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Supreme Court held that the statutory exception in section 13D.05, subd. 3(b), was consistent with its holding in <em>HRA</em>. See <em>Prior Lake American</em>. The Court considered the issue of whether the exception would apply in situations where the public body had received a potential threat of litigation. In holding that the public body violated the OML, the Court wrote, “[b]alancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting.” <em>Prior Lake American</em> at 741.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Court also held that because the exception applies only when absolute confidentiality is required, “the scope of the privilege is narrower for public bodies than it is for private clients.” <em>Prior Lake American</em> at 737. Further, the Court stated that the attorney-client privilege exception, “is to be employed or invoked cautiously and seldom in situations other than in relation to threatened or pending litigation.” And that this exception, “would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency.” <em>HRA</em> at 626.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Commissioner has issued several advisory opinions on this exception. (See <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267583" title="Advisory Opinion 99-003" target="_blank">Advisory Opinions 99-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267821" title="Advisory Opinion 14-005" target="_blank">14-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267684" title="Advisory Opinion 14-015" target="_blank">14-015</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267295" title="Advisory Opinion 14-017" target="_blank">14-017</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266933" title="Advisory Opinion 16-003" target="_blank">16-003</a>). In <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267295" title="Advisory Opinion 14-017" target="_blank">Advisory Opinion 14-017</a>, the Commissioner noted, “the privilege does not automatically apply when a public body is threatened with or engaged in active litigation; conversely, the privilege is not always prohibited prior to pending or threatened litigation ... the Supreme Court's limitations on the privilege, taken together with the obligation to construe the OML in favor of the public, set a high standard for public bodies.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Council had a contract with the school district. The Council intended to discuss the contract and decide whether to break it. The Council indicated that the school district wanted the City to continue compliance with the contract. In its comments, the Council argued, “[t]his factual scenario rose to the level of a ‘threat of litigation.’ This issue was not some mere enactment of controversial code or denial of a land use application that might result in disputes in the future, rather it involved a direct and present factual scenario in which action on the part of the City Council could immediately open the City up to legal claims against it for breach of an existing contract.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that the Council’s discussion of the contract could result in possible litigation against the City at a later date. However, at the time of the discussion there was no threatened or pending litigation. As the Supreme Court held in <em>Prior Lake American</em>, when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting. Therefore, the public’s right to hear the discussion about the contract outweighed the need for absolute confidentiality, and the Council did not comply with the OML when it went into closed session to discuss the contract.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that the Council also considered more than legal advice from its attorney during the closed session. The Council decided to suspend the contract in closed session, and subsequently informed the school district of its decision. When public bodies rely on the narrow attorney-client privilege exception to go into closed session, it should return to open session to engage in votes or discussion that fall outside this authority.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Woodbury City Council did not comply with the OML when it went into closed session on September 6, 2023, on the basis of attorney-client privilege, pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b).</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Tamar Gronvall <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 14, 2023</p>5997022662852023-11-16T05:00:43Z266258266282266284266272266262<custom:Link urlOnly="true" type="Component" destination="tcm:36-594269" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2023-10-03T13:50:13ZA data subject asked whether a city council violated the Open Meeting Law when it held multiple closed sessions under Minnesota Statutes, section 13D.05 subd. 2(b), to discuss allegations against an individual subject to its authority. The data subject also asked whether a city responded appropriately to a request for data made under Minnesota Statutes, section 13.04. The Commissioner opined that the Council did not comply with the Open Meeting Law when it held closed meetings under section 13D.05 subd. 2(b), as it had previously determined that discipline may be warranted and discussed matters outside the scope of closure permitted by the section. Additionally, the Commissioner concluded that the City did not respond appropriately to a request from the data subject because it did not provide access to the data within ten business days, as required by section 13.04. October 3, 2023; City of Fertile36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">X (a pseudonym used pursuant to section 13.072, subdivision 4) requested an advisory opinion regarding the Fertile City Council’s (Council) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D, as well as the City of Fertile’s (City) response to a data request under Minnesota Statutes, Chapter 13. The City’s legal counsel provided comments in response to the advisory opinion request. <br /> <br /> A summary of facts is as follows: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">X works in a position that is subject to the Council’s authority. On January 24, February 24, May 22, and June 12, the Council held closed meetings, citing Minnesota Statutes, section 13D.05, subdivision 2(b) as its authority to go into closed session to discuss allegations against X. During a special meeting on June 20, the Council also went into closed session under section 13D.05, subd. 2(b), but reopened the meeting when X submitted her resignation.</p> <p xmlns="http://www.w3.org/1999/xhtml">On June 29, 2023, X submitted a data subject request to the City’s Responsible Authority, asking for the recordings from all the closed meetings since January in which X was the subject. On July 12, the City told X that it was preparing and redacting the recordings to fill the request. X reported that recordings for the January, May and June 12 meetings were provided to her on August 18. In a letter to X dated August 17, the City wrote that the recording device used during the February 24 meeting malfunctioned, and there were no data from this meeting responsive to X’s request. As part of her advisory opinion request, X provided the recordings of the January 24, May 22, and June 12 meetings to the Temporary Commissioner.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Temporary Commissioner agreed to address the following issues:</p> <ol> <li>Did the Fertile City Council comply with the Open Meeting Law when it held closed meetings pursuant to Minnesota Statutes, sect on 13D.05, subdivision 2(b), on January <br /> 24, February 24, May 22, and June 12, 2023?</li> <li>Did the City of Fertile respond appropriately to a June 29, 2023 data request from a data subject pursuant to Minnesota Statutes, section 13.04? <br /> <br /></li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1</strong>: Did the Fertile City Council comply with the Open Meeting Law when it held closed meetings pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b), on January 24, February 24, May 22, and June 12, 2023? <br /></em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Open Meeting Law requires all meetings of public bodies be open to the public unless a specific law permits or requires the public body to close the meeting. When a closed meeting is conducted under these provisions, discussion at the closed session is limited to the topic outlined by law. Here, the Council closed all four meetings under Minnesota Statutes, section 13D.05, subdivision 2(b). This provision states: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. . . . <br /></em></p> <p xmlns="http://www.w3.org/1999/xhtml">Under this statute, a public body must close a meeting to discuss allegations or charges against an individual subject to its authority. However, once a public body determines that discipline of any nature <em>may</em> be warranted, then the subsequent meetings or hearings must be open to the public. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-385441" title="Opinion 19 008" target="_blank">Advisory Opinion 19-008</a>.) <br /> <br /> In its comments to the Temporary Commissioner, the Council reviewed each closed meeting at issue and confirmed discussion occurred at each meeting about allegations against X, as well as other topics related to X’s place of employment. The comments indicated the Council continued holding closed meetings on this issue until a decision regarding disciplinary action was made by the Council. The Council stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As an individual subject to the Council’s authority, the Council believed that closing each of these meetings was the best and most efficient way for it to address and review concerns regarding X’s performance, while maintaining the integrity of the ongoing investigation that the City Administrator was conducting. <br /></em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner acknowledges that the Council would prefer to hold closed meetings to discuss the allegations until a final decision regarding discipline against X has been made. However, the legislature provided for closed meetings only until the Council determines that discipline <em>may</em> be warranted. As a result, to determine whether closure of a particular meeting under section 13D.05 subdivision 2(b) was appropriate, the Temporary Commissioner looks to the discussion at the January 24, February 24, May 22, and June 12 meetings. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The redacted recordings of these closed meetings provided by X to the Temporary Commissioner indicate the Council determined discipline may be warranted at the meeting on January 24, 2023, if not earlier. While the Council members did not vote to remove X from her position at this meeting, the Council discussed hiring a temporary replacement and theorized that the issues raised in the allegations or charges would disappear if X was no longer employed by the City. Once a public body discusses replacing or otherwise removing an employee, it is clear that disciplinary action may be warranted. As a result, all later meetings on this topic must be open to the public, pursuant to section 13D.05, subd. 2(b). Further, if the Council determined prior to this session that discipline may be warranted against X, then the Council was not permitted to go into closed session under section 13D.05, subd. 2(b) during the January 24 meeting. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the City provided the following comment regarding the discussion at the January 24 meeting: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>. . . Council discussion covered multiple topic areas of concern  and did not focus on [X] or any one individual specifically as the subject of the meeting. <br /></em></p> <p xmlns="http://www.w3.org/1999/xhtml">From the brief recording provided to the Temporary Commissioner and the City’s own comments, it is clear the Council discussed issues beyond the scope of closure authorized by section 13D.05, subd. 2(b). Therefore, the portions of the discussion beyond the scope of preliminary consideration of allegations against X at the January 24 should have been held while the meeting was open to the public. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Discussion at later meetings also confirm that the Council previously determined that discipline against X may be warranted. The February 24 meeting was not properly recorded or provided to X due to a technology malfunction, but discussions at the meetings on May 22 and June 12 focus on continuing concerns about X’s work performance, hiring a replacement, and notifying X of the Council’s decision to remove X from her position. The underlying assumption throughout all these discussions is that the Council previously determined discipline against X may be warranted. Given that the Council had already determined that discipline may be warranted at or before the January 24 meeting, these ongoing discussion of allegations against X in closed session were not permitted by section 13D.05, subd. 2(b). <br /> <br /> In addition, the subject matter of the meetings on May 22 and June 12 also strays beyond the scope of the authority to go into closed session under section 13D.05, subd. 2(b). Discussion of hiring a replacement, management of the city business, or other employees or matters not relevant to the allegations are outside of the scope of permitted topics for closure under section 13D.05, sub. 2(b). <br /> <br /> Finally, the City communicated to X that the February 24 meeting was not properly recorded due to a malfunction in the recording equipment. Minnesota Statutes, section 13D.05, subdivision 1(d) requires public bodies to record closed meetings and retain the recordings for three years.The Temporary Commissioner encourages the Council to rectify any issues with equipment to ensure compliance with this provision for future meetings. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2</strong>: Did the City of Fertile respond appropriately to a June 29, 2023 data request from a data subject pursuant to Minnesota Statutes, section 13.04?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On June 29, X emailed the City Administrator and asked for “copies of all recordings from closed meetings related to me since January.” The City updated X on July 12, stating that they were preparing the data. Both the City and X stated that these recordings were provided to X on August 18. </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.04, subdivision 3 addresses a government entity’s response to data requests when individuals request data about themselves. Subdivision 3 states, in part:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible. <br /></em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner recognizes that meeting this required timeframe can be difficult for government entities, especially for smaller entities facing limited staff and exponential increases in electronic data. However, section 13.04, subd. 3, creates a strict deadline for responding to data subject requests within 10 business days and does not provide for exceptions to this requirement. Therefore, the City’s response was outside the appropriate timeframe for a response required by statute. <br /> <br /></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Temporary Commissioner’s opinion on the issues are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Fertile City Council did not comply with the Open Meeting Law when it held closed meetings on January 24, February 24, May 22, and June 12, 2023 pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b) after the Council determined discipline may be warranted against X and discussed issues beyond the scope of the closure required by this section.</li> <li>The City of Fertile did not respond appropriately to a June 29, 2023 data request from a data subject pursuant to Minnesota Statutes, section 13.04, when it did not respond within 10 business days.</li> </ol> <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Stacie Christensen <br /> Temporary Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 3, 2023</p>5942692672632666492023-10-25T13:03:00Z266258266282266283<custom:Link urlOnly="true" type="Component" destination="tcm:36-591160" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2023-09-07T18:30:28ZMembers of the public asked whether a city council violated the Open Meeting Law when it discussed topics during a special meeting that were not described in the special meeting notice's purpose. The Commissioner opined that the council did not provide appropriate notice of its special meeting because the purpose in the notice failed to describe all topics that councilmembers discussed.September 7, 2023; Crosslake City Council36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Paul Boblett, editor of the Northland Press, and Nancy Vogt, editor of the Pine and Lakes Echo Journal, requested an advisory opinion regarding the Crosslake City Council’s conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Council’s legal counsel provide comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">Boblett and Vogt submitted comments and news stories providing the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The articles related to what both Nancy and I believe to be an Open Meeting Law violation can be found in the June 20 edition of Northland Press … and the June 14 edition of the Echo Journal….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>There is also a video … of the May 24, 2023 Special Meeting to corroborate what happened, which boils down to the Crosslake City Council discussing several items not described in the posted notice … during their May 24, 2023 Special Meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Crosslake Council Lectured Regarding Open Meeting Law, Workshop Comments</strong></em> <br /> <em>By Paul Boblett, Editor</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… Nelson then listed the agenda items given to her by the council prior to the May 24 workshop that included parking, future land purchase, ethics, the side by side, fire chief salary, and the Boller property.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Topics not on the agenda, but discussed by council during that meeting include the city sign, affordable housing, police scheduling, short term rentals and police, the Loon Center, short term rental ordinance, the roundabout, and motions versus tabled items. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Crosslake council receives harsh reprimands from staff</strong></em> <br /> <em>By Nancy Vogt, Editor</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… A silent city council listened as City Clerk Char Nelson pointedly told them they’d recently violated the state’s Open Meeting Law.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… She cited the council’s May 24 workshop at city hall, where council members were to give her specific agenda items to discuss. She listed those items, then said the council addressed many other topics - which she also listed - that weren’t on the agenda. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Boblett and Vogt also submitted a copy of the Council’s notice of its May 24 special meeting as well as a link to a video recording of the Council’s meeting.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Temporary Commissioner agreed to address the following issue:</p> <p>Did the Crosslake City Council provide appropriate notice of its special meeting on May 24, 2023, as required by Minnesota Statutes, section 13D.04, subdivision 2?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">In a historical review of the OML, the Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Open Meeting Law serves several purposes:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) “to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies’] decisions or to detect improper influences”; (2) “to assure the public’s right to be informed”; and (3) “to afford the public an opportunity to present its views to the [public body].”</em> St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.<em>, 332 N.W.2d 1 (Minn. 1983)(citations omitted).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Court added in <em>Prior Lake American</em> that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” (See also <em>St. Cloud Newspapers</em>, 332 N.W.2d at 6, stating “The [OML] will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by § 471.705.”)</p> <p xmlns="http://www.w3.org/1999/xhtml">Although the Legislature did not define “meeting” in the OML, the Supreme Court defined meetings subject to the law as “those gatherings of a quorum or more members of the governing body … at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">A public body must provide a special meeting notice for any meeting that is not on the regular schedule of meetings on file at its primary offices. Minnesota Statutes, section 13D.04, subdivision 2 requires a public body to post written notice of the date, time, place, and purpose of the special meeting on the principal bulletin board or the door of the usual meeting room at least three days before the meeting. Subdivision 2 also permits individuals to request notice of special meetings “concerning particular subjects.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that for a special meeting notice to be effective, it must provide detail about the meeting’s purpose, which is the intended object or end to be attained in a special meeting. (See <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267355" title="Advisory Opinion 07-014" target="_blank">Advisory Opinions 07-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267304" title="Advisory Opinion 10-013" target="_blank">10-013</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267675" title="Advisory Opinion 15-002" target="_blank">15-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-550917" title="Advisory Opinion 22-009" target="_blank">22-009</a>). <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267471" title="Advisory Opinion 04-004" target="_blank">Advisory Opinion 04-004</a> also clarifies that when a public body holds a special meeting, its “actions are limited to those topics included in the notice of the special meeting.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Temporary Commissioner, the Council wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The May 24, 2023 notice listed the purpose of the meeting as a Council Workshop at which issues and topics would be discussed. The May 24, 2023 special meeting was open to the public and attended by members of the public. … The public was not limited in its access to the discussions at the May 24, 2023 meeting. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The notice also included topics which are broad in nature. The complaint from Mr. Boblett and Ms. Vogt takes a rigid view of the way the topics outlined in a meeting notice may be discussed. Here, the City appropriately identified the purpose of the special meeting in its meeting notice as a City Council workshop and then outlined broad topics. That discussion of those topics at the meeting was, of course, broader than the one-word description of the topics as outlined in the meeting notice. That is the way some discussions work--a topic is identified, and the discussion expands with thoughts, opinions, and facts about that topic. The fact that the discussion expands does not mean that the original topic identified is not still the topic of discussion. The Council appropriately identified topics for discussion in its meeting notice and then engaged in broader discussion. That broader discussion, however, still related to the topics identified in the meeting notice. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The discussion of the roundabout focused on discussions of Crow Wing County Board meeting discussions and a past City Council meeting. Additionally, the discussion of the roundabout related to parking and the removal of parking. … The discussion of the Loon Center was anecdotal and referenced the roundabout. The Loon Center also relates to parking as the location of the Center would result in a lack of parking. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Council’s brief reference to short term rentals and the short-term rental ordinance referenced a subsequent meeting on May 31, 2023, and a reference to a past symposium. The discussions are anecdotal in nature. While the phrase “affordable housing” was said in the discussion of short-term rentals, but that reference was limited and not a separate topic. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The reference to the “city sign” was limited and a simple question relative to when the sign, which was previously approved by the City Council, was going to be finished. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The reference to police scheduling was similarly limited in nature. Mayor Nevin informed the Council he was going to speak with the Police Chief about police officer scheduling as it related to police officer safety. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The City submits there has not been a violation of the Open Meeting Law. The posted meeting notice identified the purpose of the special meeting as a City Council workshop and outlined broad topics. The discussion by the Council was within the scope of the requirements of the law. The Council did not “transact public business,” no motions were made, and no public business occurred. The public was present for this discussion and the public’s right to full access to the discussions at the May 24, 2023 City Council meeting was not limited.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner respectfully disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, all council members met during a special meeting on May 24 to discuss official business, and the special meeting notice stated the purpose of the meeting was for “reviewing grade adjustment to Boller property on CSAH 66, and discussing the following topics: parking, future land purchases, ethics issues, side by side for police department, and fire chief salary.” During the special meeting, the Council’s discussions included these specific topics.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, the Council acknowledged that its members discussed additional issues during the May 24 special meeting, including motioned versus tabled items, a planned roundabout, the Loon Center, short term rentals and a short-term rental ordinance, a city sign, and police scheduling. The Council maintained that the discussions of these issues were within the scope of the topics described in the special meeting notice’s purpose or were limited in nature.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner recognizes that when a public body identifies a broad topic it will address as a purpose of a special meeting, members’ discussions may reasonably expand and reach several sub-issues related to the topic. However, the meeting recording reveals Council discussion of additional issues that the public body failed to include in the special meeting notice’s purpose, and many of the issues did not directly relate to or mention the appropriately noticed topics.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner is also not persuaded that the Council did not need to include the additional issues in the special meeting notice’s purpose because discussions about these issues were limited in nature. The OML requires the Council to describe all subjects that it would address in the special meeting notice’s purpose, regardless of the scope of the members’ discussion. The Council’s failure to properly notice these topics resulted in the public not knowing which subjects the Council would address during the special meeting, and the public could not reasonably determine whether to attend the special meeting to be informed about the councilmember’s views on these topics or have access to the Council’s decision-making process.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council’s special meeting notice did not describe several topics that members discussed during the May 24 meeting, and the Council was obligated to wait until its next regular meeting or schedule another special meeting to discuss these additional topics. Therefore, the Council did not provide appropriate notice of its special meeting on May 24, 2023, as required by the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Temporary Commissioner has a final note on the Council’s argument that it did not “transact public business,” suggesting additional discussion outside the scope of the notice was permitted under the OML. The Minnesota Supreme Court has determined that any gathering of a quorum or more of a public body’s members to “discuss, decide, or receive information as a group on issues relating to the official business of that governing body” is a meeting subject to the OML’s requirements. This definition of a meeting does not require a public body to transact public business or make and vote on motions for the OML requirements to apply.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Temporary Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Crosslake City Council did not provide appropriate notice of its special meeting on May 24, 2023, as required by Minnesota Statutes, section 13D.04, subdivision 2.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Stacie Christensen <br /> Temporary Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">September 7, 2023</p>5911602662902023-09-08T19:42:16Z266258266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-589036" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2023-08-23T18:30:28ZA member of the public asked whether a county responded appropriately to a request for the entity’s data inventory. The county informed the member of the public that the data inventory required by Minnesota Statutes, section 13.025, subdivision did not exist. As a result, Commissioner opined that the entity did not respond appropriately to the request.August 23, 2023; Benton County36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Trent Robertson asked for an advisory opinion regarding his right to access Benton County’s data inventory, under Minnesota Statutes, Chapter 13 (Data Practices Act). Benton County (County) submitted comments in response to Robertson’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On July 20, 2023, Robertson contacted a responsible authority at the County requesting access to the County’s data inventory.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County responded on July 21, 2023 stating,</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We are aware of the provisions of the MN Data Practices Act regarding a data inventory…. The County has made its best efforts to comply with the data practices act, including establishing procedures for individuals to request access to government data and designating responsible authorities over government data. The County takes reasonable steps to ensure the security of government data through physical and electronic controls. Due to staffing limitations, we have not had the ability to create a data inventory. As time and staffing permits, we will make reasonable efforts to satisfy all the requirements of Chapter 13.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Temporary Commissioner agreed to address the following issue:</p> <p>Did Benton County respond appropriately to a member of the public’s request to access the entity’s data inventory required by Minnesota Statutes, section 13.025, subdivision 1?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act requires a government entity to respond in an appropriate and prompt manner and within a reasonable time when receiving a data request from a requester who is not the subject of the data. (See section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.025, subdivision 1 requires a government entity’s responsible authority to prepare “an inventory containing the authority's name, title, address, and a description of each category of record, file, or process relating to private or confidential data on individuals maintained by the authority's government entity.” This data inventory must be updated annually and “available from the responsible authority to the public according to the provisions of sections 13.03 and 15.17.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The requirement for government entities to create and maintain a data inventory is long-standing, and the Commissioner understands that staffing limitations may make meeting this requirement difficult. Nonetheless, government entities have an obligation to prepare the data inventory, ensure it is updated annually, and provide access to members of the public in response to public data requests.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Robertson requested the data inventory from a responsible authority at the County. The County indicated that it does not have a data inventory. Therefore, the County did not provide appropriate access to the inventory required by section 13.025, subdivision 1.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Temporary Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Benton County did not respond appropriately to a member of the public’s request to access the entity’s data inventory required by Minnesota Statutes, section 13.025, subdivision 1.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Stacie Christensen <br /> Temporary Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">August 23, 2023</p>5890362670492023-10-25T13:06:45Z266258266262266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-581173" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2023-06-14T17:00:00ZA data subject asked whether a joint powers entity responded appropriately to a data subject request when it did not provide responsive data within 10 business days. The Commissioner opined that the entity did not respond appropriately. She encouraged government entities to discuss the requirements of section 13.04 with contractors and IT personnel to ensure data subject requests are responded to within the required timeframe.June 14, 2023; Western Prairie Human Services36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">X (a pseudonym used pursuant to section 13.072, subdivision 4) asked for an advisory opinion regarding her right to access data about herself and her minor child from Western Prairie Human Services (WPHS), under Minnesota Statutes, Chapter 13 (Data Practices Act). WPHS submitted comments in response to X’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In her request, X wrote that she submitted a data subject request to WPHS on February 27, 2023. WPHS confirmed receipt of the data request on February 28, 2023. X followed up on her data request in March and April 2023.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, WPHS wrote that it “contracts with an outside agency to provide IT services.” WPHS explained that it received responsive data provided by the IT company on March 17, 2023, with the exception of data maintained on two cell phones. WPHS indicated that it followed up with the IT company for the additional data in March and April 2023. WPHS received the remaining responsive data from the IT company on May 1, 2023.</p> <p xmlns="http://www.w3.org/1999/xhtml">WPHS added that it provided the responsive data to legal counsel for review and redaction prior to releasing the data to X on May 9, 2023.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Western Prairie Human Services respond appropriately to a February 27, 2023, data request from a data subject pursuant to Minnesota Statutes, section 13.04?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Grant County and Pope County entered into a joint powers agreement to combine Grant County Social Services and Pope County Human Services, forming Western Prairie Human Services, a joint powers entity, pursuant to Minnesota Statutes, section 471.59.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that joint powers entities are statewide systems as defined in Minnesota Statutes, section 13.02, subdivision 18. (See <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267653" title="Advisory Opinion 95-040">Advisory Opinions 95-040</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267704" title="Advisory Opinion 07-011">07-011</a>.) Therefore, Western Prairie Human Services is subject to the requirements of Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.04, governs the rights of data subjects. Section 13.04, subdivision 3 requires a government entity to “comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-340460" title="Advisory Opinion 18-005">Advisory Opinion 18-005</a>, the Commissioner stated, “[w]hen a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access. … Though the amount of data created and maintained by government is ever-increasing due to the transition to electronic and digital records, the strict time limit to provide access to data about data subjects remains the same.” (See also <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267853" title="Advisory Opinion 03-026">Advisory Opinions 03-026</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267820" title="Advisory Opinion 04-070">04-070</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267728" title="Advisory Opinion 14-006">14-006</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-514480" title="Advisory Opinion 22-001">22-001</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that searching for, retrieving, and redacting responsive data can be time-consuming depending upon the size of the data request. However, there is not an exception to the 10-business day response time required by section 13.04. Therefore, WPHS did not respond appropriately when it failed to provide X with the requested data about herself and her minor child within 10 business days.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges that entities may rely on internal IT departments or contractors to assist with the search and retrieval of electronic data. However, the Commissioner encourages entities to discuss its Chapter 13 obligations with its technology providers to ensure that requests from data subjects are responded to within 10 business days.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Western Prairie Human Services did not respond appropriately to a data request made on February 27, 2023, by a data subject, pursuant to Minnesota Statutes, Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Stacie Christensen <br /> Temporary Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 14, 2023</p>5811732667622670492673082023-06-15T18:18:23Z266258266282266284266283<custom:Link urlOnly="true" type="Component" destination="tcm:36-550917" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-12-08T18:00:00ZA member of the public asked whether the school board of a charter school violated the Open Meeting Law when it did not record the closed portion of a meeting and whether the board provided appropriate notice of the purpose of a special meeting. The board acknowledged it failed to record the closed meeting at issue as required by the OML and described steps it would take to avoid similar situation in the future. The Commissioner opined that the board did not provide appropriate notice of the special meeting's purpose because the notice indicated the board would hold closed session "for preliminary consideration of allegations or charges against an individual subject to the board's authority." However, the board violated the OML when it moved beyond the stated purpose of a "preliminary consideration" when it also voted to impose discipline on the individual.December 8, 2022; Modern Montessori Charter School36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Shawn and Shawna Heller requested an advisory opinion regarding the Modern Montessori Charter School Board’s (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Hellers provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On May 18, 2022, Modern Montessori Charter School Board held a closed annual review of the Director of Operations. As the subject of the meeting, the Director requested a copy of the recording. The School Board admitted the meeting was not recorded in accordance with Minnesota Statute 13D.05 Subd. 1 (d). …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On September 28, 2022, Modern Montessori Charter School Board held a closed session under Minnesota Statute 13D.05, Subd. 2 (b). … The meeting notice on the school’s website only contained the following content with no additional information or agenda:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><strong>SCHOOL BOARD MEETING: SPECIAL SESSION</strong> <br /> Wednesday, September 28, 2022 <br /> 6:45 PM - 7:45 PM <br /> Modern Montessori Charter School</p> <p xmlns="http://www.w3.org/1999/xhtml">This special meeting will be closed pursuant to Minn. Stat. 13D.05, Subd. 2 (b) for preliminary consideration of allegations or charges against an individual subject to the board’s authority.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>According to the meeting minutes, the special meeting transitioned from closed to open and the School Board voted to end employment of the Director prior to adjournment of the special meeting. The Director and public school community was not informed, provided an agenda, nor given a reasonable expectation that a vote was going to occur based on the content of the special meeting notice and previous meeting precedent. Alternatively, no physical notice was posted on the premises with any additional information in the three days prior to the meeting.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the Modern Montessori Charter School Board violate the Open Meeting Law when it did not record the portion of its May 18, 2022, meeting that was closed to evaluate the performance of an individual who was subject to its authority?</li> <li>Did the Modern Montessori Charter School Board provide appropriate notice of the purpose of its special meeting on September 28, 2022, as required by Minnesota Statutes, section 13D.04, subdivision 2?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Modern Montessori Charter School is a public charter school. Minnesota Statutes, section 124E.03, subdivision 5a requires Minnesota charter schools to “comply with chapter 13D governing open meetings.” Therefore, the Board is subject to the requirements of the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Did the Modern Montessori Charter School Board violate the Open Meeting Law when it did not record the portion of its May 18, 2022, meeting that was closed to evaluate the performance of an individual that was subject to its authority?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.05, subdivision 1(d) requires a public body to record its closed meetings at its own expense, except meetings closed as permitted by attorney-client privilege. These recordings must be preserved for at least three years after the date of the meeting unless the law states otherwise.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>MMCS admits that the closed portion of the May 18, 2022 meeting was not recorded. MMCS was established in the fall of 2019. Having been in existence for only three (3) years, closed sessions of meetings of the board have occurred infrequently. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… [T]he Board held a series of meetings that were not recorded which was due to inadvertence and lack of knowledge. Once the Board was notified by a board member based upon their training, and also sought guidance from legal counsel regarding recording requirements, MMCS has been in compliance with the Open Meeting Law and has recorded closed meetings when required. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… MMCS admits to having missed or misunderstood the recording requirement for various types of closed meetings, has recently received training, guidance from legal counsel and has additional training scheduled. MMCS intends to change its board training to include annual training on the requirements of the Open Meeting Law.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Board acknowledged that it violated the OML when it failed to record the closed portion of its meeting on May 18, 2022. The Commissioner appreciates the Board describing the steps it is taking to avoid similar situations in the future.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did the Modern Montessori Charter School Board provide appropriate notice of the purpose of its special meeting on September 28, 2022, as required by Minnesota Statutes, section 13D.04, subdivision 2?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader,</em> 642 N.W.2d 729 (Minn. 2002) that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” (See also <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.,</em> 332 N.W.2d 1 (Minn. 1983), stating “The [OML] will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by § 471.705.”)</p> <p xmlns="http://www.w3.org/1999/xhtml">A public body must provide notice at least three days before any meeting that is not on its regular schedule. The notice must include the date, time, place, and purpose of the meeting. (Minnesota Statutes, section 13D.04, subdivision 2). These notice requirements also apply to closed meetings. (Minnesota Statutes, section 13D.04, subdivision 5).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has opined that special meeting notices must provide detail about the purpose of the meeting. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267355" title="Advisory Opinion 07-014" target="_blank">07-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267304" title="Advisory Opinion 10-013" target="_blank">10-013</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267675" title="Advisory Opinion 15-002" target="_blank">15-002</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267471" title="Advisory Opinion 04-004" target="_blank">04-004</a> indicates that when a public body holds a special meeting, its “actions are limited to those topics included in the notice of the special meeting.” The Commissioner added, “[t]his conclusion is further supported by the purpose and spirit of the OML, which is to allow the public the opportunity to participate in the government that represents it. The public cannot receive effective notice unless [a public body] is limited to acting on only those items for which this notice was provided when the special meeting was scheduled.” (See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267582" title="Advisory Opinion 04-057 " target="_blank">04-057</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267304" title="Advisory Opinion 10-013" target="_blank">10-013</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267304" title="Advisory Opinion 15-002" target="_blank">15-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-379354" title="Advisory Opinion 19-006" target="_blank">19-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The substance of the Notice fulfills the requirements of Minn. Stat. 13D.04, subd. 2(a). …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Apparently, the Hellers’ issue with the Notice stems from the fact that following the closed session where preliminary consideration of allegations or charges were considered, the board came out of closed session and, at that same meeting, in open session, passed a resolution regarding disciplinary action to be taken against Ms. Heller. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>If MMCS board were to follow the Hellers’ logic, then another special meeting would have to be called for the purpose of acting upon the discipline that the board concluded was warranted. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In this case, during the closed portion of the September 28, 2022 meeting, the board concluded that discipline was warranted as a result of the allegations or charges against Ms. Heller. In order to act upon the conclusions reached during the closed portions of the meeting, the board returned to open session, passed the resolution … and then adjourned. The board’s resolution was consistent and in keeping with the purpose of the meeting described in the Notice.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees that the Board met the requirements of section 13D.04, subd. 2, as it failed to provide sufficient details of the special meeting’s purpose in its notice to accurately reflect the Board’s actions during the special meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The OML does not define “purpose.” As a result, the Commissioner must rely upon the common usage of the word. (See Minnesota Statutes, section 645.08.) Meriam Webster defines purpose as “something set up as an object or end to be attained: intention.” Therefore, section 13D.04, subd. 2 requires a public body to provide notice of the intended object or end to be attained in a special meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Board confirmed that the language describing the special meeting’s purpose was “<em>[t]he special meeting will be closed</em> pursuant to Minn. Stat. 13D.05, Subd. 2 (b) for <em>preliminary consideration</em> of allegations or charges against an individual subject to the board’s authority.” (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The notice did not provide details about any discussion or action that might occur beyond the Board’s preliminary considerations of allegations or charges to take disciplinary action, nor did the notice suggest the Board would address topics outside of a closed session.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board is correct that the OML requires any subsequent discussions or disciplinary actions to take place in open session after it determines discipline may be warranted. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-385441" title="Advisory Opinion 19-008" target="_blank">Advisory Opinion 19-008</a>). Additionally, the Commissioner acknowledges the Board’s position that it was administratively inconvenient to schedule and notice a second special meeting to act on discipline it concluded was warranted. However, the Board’s notice stated that the purpose of the meeting was for preliminary considerations of allegations or charges against an individual subject to its authority. In voting to impose discipline, the Board moved beyond the special meeting’s “intended object or end to be obtained” described in the notice.</p> <p xmlns="http://www.w3.org/1999/xhtml">As the Board did not provide any details in its notice other than its intent to hold a closed session for discussion of preliminary consideration of allegations or charges, the OML required the Board to schedule another special meeting or wait until its next regular meeting before taking additional actions. If the Board wished to take additional action at its September 28, 2022, meeting, it needed to provide more details in the purpose given on the special meeting notice to reasonably inform members of the public that such actions may take place.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, the Board did not provide appropriate notice of the purpose of its September 28, 2022, special meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner notes that in its comments, the Board stated that the only location it posted the special meeting notice was on its public website. Although the Commissioner agrees with the Board that posting a special meeting notice on a website “has significantly more public visibility than an internal bulletin board or the door to the meeting room,” an online posting alone does not meet the requirements of section 13D.04, subd. 2. Rather, subdivision 2 requires a public body to post the notice on its principal bulletin board or on its meeting room door if there is no principal bulletin board. A public body is also obligated to mail a notice to any individual who has filed a written request to receive notice of special meetings.</p> <p xmlns="http://www.w3.org/1999/xhtml">As noted in past opinions, the Commissioner recognizes that the OML contains various provisions that may not reflect public bodies’ contemporary business practices. She encourages the Legislature to review the OML for opportunities to address the practical implementation of the law to meet current expectations and abilities of both public bodies and the public.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Modern Montessori Charter School Board violated the Open Meeting Law when it did not record the portion of its May 18, 2022, meeting that was closed to evaluate the performance of an individual who was subject to its authority.</li> <li>The Modern Montessori Charter School Board did not provide appropriate notice of the purpose of its special meeting on September 28, 2022, as required by Minnesota Statutes, section 13D.04, subdivision 2.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 8, 2022</p>5509172662902666492023-08-18T19:14:14Z266258266282266284<custom:Link urlOnly="true" type="Component" destination="tcm:36-549227" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-12-02T18:00:00ZA member of the public asked whether a township board of supervisors violated the Open Meeting Law when it closed a meeting to review applications to appoint a new board supervisor. The board maintained that its meeting was properly closed under Minnesota Statutes, section 13D.05, subdivision 3(a) because it was reviewing applicant data of individuals who voluntarily placed themselves under the Board’s authority. The Commissioner opined that section 13D.05, subd. 3(a) permits public bodies to close meetings only to “evaluate the performance of individuals” rather than to discuss general personnel issues, such as hiring or appointment decisions. Therefore, the board closing its meeting to review applications violated the Open Meeting Law. December 2, 2022; Thomson Township Board of Supervisors36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Jana Peterson, editor of the Pine Knot News, requested an advisory opinion regarding the Thomson Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">Peterson provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Thomson Township Board of Supervisors held its regular meeting on Sept. 8, but went into closed session for what it termed “personnel” discussions, along with an update on a potential real estate transaction. There were no names listed on the agenda (attached) regarding the alleged “personnel” discussion.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>What the supervisors actually discussed under its “personnel” OML exemption were the six applications from citizens of Thomson Township to replace elected supervisor Jason Paulson, who had stepped down. In their private discussion about his replacement, the board narrowed its applicant pool from six to three.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Thomson Township Board of Supervisors violate the Open Meeting Law when it closed a meeting on September 8, 2022, to review applications to appoint a new board supervisor?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of a public body to be open to the public, with limited exceptions. The exceptions for closing a meeting are described primarily in Minnesota Statutes, section 13D.05.</p> <p xmlns="http://www.w3.org/1999/xhtml">Specifically, Minnesota Statutes, section 13D.05, subdivision 3(a) states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Town properly closed a meeting on September 8, 2022 pursuant to sec. 13D.05, Subd. 3(a) of the Open Meeting Law to review and evaluate applicant data, both private and public, pursuant to sec. 13.43, subd. 1 and 3 of the Data Practices Act, as modified by sec. 13.601, subd. 2 and 3 of the Data Practices Act, to determine a short list of applicants to invite back for public interviews to fill an open board seat, from individuals who had voluntarily placed themselves under and made themselves subject to the Board’s authority by submitting such letters of application to the Board.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">The ability of a public body to close a meeting under the language of section 13D.05, subd. 3(a) is limited to situations when it will “<em>evaluate the performance</em> of an individual subject to its authority.” (Emphasis added.) The language does not allow a public body to close meetings to generally discuss personnel issues, such as hiring or appointment decisions. Additionally, the subdivision’s language itself further supports the limitation of closing meetings only to performance evaluations, stating that a body must “identify the individual to be evaluated” as well as requiring the body to “summarize its conclusions regarding the evaluation” at its next open meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Board did not provide any information indicating it closed the meeting to evaluate the performance of any individual subject to its authority. Rather, the Board explained that the closure was to review and evaluate applications to select finalists who it would interview for a Board vacancy.</p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the information provided, the Board did not close the meeting to conduct performance evaluations of individuals subject to its authority. Therefore, it could not rely upon section 13D.05, subd. 3(a) to close its meeting. Even if it were conducting performance evaluations, the Board failed to comply with the necessary steps to close a meeting under section 13D.05, subd. 3(a), including identifying the individual subject to its authority who will be evaluated in closed session and summarizing the conclusions of the evaluation at the next open meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Board cited Minnesota Statutes, sections 13.43 and 13.601 to maintain that it was permitted to close the September 8 meeting. However, a not public classification is insufficient authority to close a meeting. (Minnesota Statutes, section 13D.05, subdivision 1(a) states, “Except provided in this chapter, meetings may not be closed to discuss data that are not public.”) Further, townships located in non-metropolitan counties, such as Carlton County, are not subject to the Minnesota Government Data Practices Act. (See Minnesota Statutes, section 13.02, subdivision 11.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board did not identify any other provision within the OML or any other statute that would permit it to close a meeting in this situation. Therefore, the Board did not comply with the OML when it went into a closed session to review applications for a board vacancy.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Thomson Township Board of Supervisors violated the Open Meeting Law when it closed a meeting on September 8, 2022, to review applications to appoint a new board supervisor.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 2, 2022</p>5492272666292667162022-12-06T18:08:23Z266258266394266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-549122" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-11-23T18:00:00ZA member of the public asked whether a county attorney’s office responded appropriately to a request for data, including correspondence and non-work product materials. The county indicated that any responsive data were governed by Minnesota Statutes, section 13.393, and thus were exempt from the Minnesota Government Data Practices Act. The Commissioner opined that if the county attorney’s office maintained responsive government data that were not maintained by attorneys acting in their professional capacity for the entity and governed by provisions specific to attorney work pursuant to section 13.393, then it did not respond appropriately to the member of the public’s data request.November 23, 2022; Hennepin County36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Eric Rice (Rice) asked for an advisory opinion regarding his right to access data maintained by the Hennepin County Attorney’s Office (HCAO), under Minnesota Statutes, Chapter 13 (Data Practices Act). HCAO submitted comments in response to Rice’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">On January 10, 2022, Rice submitted a data request to HCAO for:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Correspondence and non-work product materials regarding the incident involving Jaleel Stallings and Minneapolis Police officers that occurred on May 30, 2020. The incident is MPD No. 2020-146953 and Court File No. 27-CR-20-12859. I am particularly interested in the creation and dissemination of the press release announcing Stallings’ arrest and charges issued by the Hennepin County Attorney’s Office. I also seek general correspondence or other documents that reference or discuss the Stallings matter.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Rice indicated that he anticipated receipt of correspondence, training materials, materials related to the entity’s press release, as well as correspondence regarding media and news inquiries to the entity. Rice argued, “these materials, and others, would not be subject to any court privilege, and, thus, would not be protected from disclosure pursuant to Minn. Stat. 13.393.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, HCAO indicated it responded to Rice on May 25, 2022, stating, “[n]o public data exists responsive to your request. Existing data is protected under MN Statute Section 13.393.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Hennepin County Attorney’s Office respond appropriately to a data request for certain “correspondence and non-work product materials” submitted on January 10, 2022?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.393, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for a government entity shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267599" title="Advisory Opinion 12-017" target="_blank">Advisory Opinion 12-017</a>, the Commissioner highlighted that “[s]ection 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity’s attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In prior opinions, the Commissioner distinguished between data maintained by attorneys acting in a professional capacity for a government entity that are governed by other “statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility” and data that are not governed by provisions specific to attorneys acting in their professional capacity. (See <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267599" title="Advisory Opinion 12-017" target="_blank">Advisory Opinions 12-017</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267516" title="Advisory Opinion 05-009" target="_blank">05-009</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">When evaluating the application of section 13.393, courts generally analyze whether there is a doctrine or privilege applicable to the data at issue that would warrant the government entity relying upon section 13.393 to exclude the data from the requirements of the Data Practices Act. For example, in <em>City Pages v. State of Minnesota</em> the court addressed limitations to attorney-client privilege and the work product doctrine, indicating that billing records would not be protected in their entirety. <em>City Pages v. State of Minnesota</em>, 655 N.W.2d 839 (Minn. Ct. App., 2003). Recently, the Minnesota Supreme Court also recognized the common-interest doctrine and discussed the doctrine in relation to section 13.393. <em>Energy Policy Advocates v. Ellison</em>, A20-1344 (Minn., Sep. 28, 2022).</p> <p xmlns="http://www.w3.org/1999/xhtml">As stated in <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267599" title="Advisory Opinion 12-017" target="_blank">Advisory Opinion 12-017</a>, “the Legislature did not intend that any and all data used, collected, stored, or disseminated by a public attorney, or government data held by a government entity that relate to the conduct of its legal affairs, are exempt from disclosure under Chapter 13.” When a government entity relies upon section 13.393 to exempt data from the requirements of Chapter 13, the entity should ensure the attorney maintaining the data is acting in a professional capacity for the entity and there is an applicable statute, rule, and/or professional standard concerning discovery, production of documents, introduction of evidence, or professional responsibility that otherwise governs the data in the hands of the government attorney. The fact that data are maintained by a government attorney does not in itself warrant the application of section 13.393.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Rice requested correspondence and non-work product materials, including data related to a specific press release. General correspondence with members of the public, such as media inquiries, or a copy of a publicly-issued press release, are unlikely to fall within section 13.393 as these data do not appear to be subject to statutes, rules, or professional standards that otherwise govern the work of a government attorney. Therefore, some of the data HCAO created related to those activities were likely government data subject to Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts provided by the parties, it is not clear whether such government data existed at the time of the January 10, 2022, data request. If the requested government data existed, the data were subject to the public presumption and should have been provided to the requester unless a not public classification applied.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">If HCAO maintained government data responsive to Rice’s data request that were not maintained by attorneys acting in their professional capacity for the entity and governed by provisions specific to attorney work pursuant to section 13.393, then it did not respond appropriately to the January 10, 2022, data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 23, 2022</p>5491222663972022-11-28T15:32:47Z266258515651<custom:Link urlOnly="true" type="Component" destination="tcm:36-536273" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-08-09T17:00:00ZA city asked whether data it collected, created, and maintained pursuant to a contract with a private entity were government data, subject to the Data Practices Act. The Commissioner opined that the data were government data because the data met the definition of government data in Minnesota Statutes, section 13.02, subdivision 7 and the city’s financial director administered the data as part of her work for the city. The Commissioner further advised that the data were public unless the city could identify a state statute or federal law that classified the data as not public.August 9, 2022; City of Two Harbors36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The City of Two Harbors requested an advisory opinion from the Commissioner about certain data that the City maintains and the applicability of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act) to that data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>THDF [the Two Harbors Development Fund, Inc.] administers a revolving loan fund for business development loans within the city of Two Harbors. The Articles of Incorporation and Bylaws of THDF require all board appointments to be made by the Mayor of Two Harbors, with consent of the city council. The City and THDF also entered into an agreement whereby the City would provide loan application forms, loan agreements, accounting, audit, bookkeeping and record keeping for the loans in exchange for the sum of $5,000 annually (See attached Ex.A). Loan applications are available at, and to be returned to, Two Harbors Development Fund, Inc. 522 First Avenue, Two Harbors, MN. This is the same address as the Two Harbors City Hall. The Finance Director receives all payments and does all bookkeeping.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>THDF is required to provide the City with access to its books and records at all times to allow the City Financial Director to prepare monthly financial statements to be submitted to the City, in addition to all federal and state tax filings. The City Finance Director performs all accounting for THDF in her job as a City employee.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Are data collected, created, and maintained by the City of Two Harbors pursuant to the City’s contract to perform services for a non-government entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</li> <li>If the answer to Issue 1 is yes, how are the data classified?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Are data collected, created, and maintained by the City of Two Harbors pursuant to the City’s contract to perform services for a non-government entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act defines “government data” as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.) A “government entity” includes political subdivisions, state agencies, and statewide systems. (Minnesota Statutes, section 13.02, subdivision 7a.) The City of Two Harbors is a political subdivision.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request for an opinion, the City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The City believes that should the Commissioner find otherwise, significant data will be disclosed that neither the THDF board members, nor loan recipients, believed would be made public. The Agreement provides for the City to provide accounting services to THDF, with the understanding that the otherwise private financial information submitted to the City to perform its duties would remain private. Although the Finance Director performed this work in the scope of her duties as a City employee, the City was compensated for that service and no government function was performed. This was private accounting work, bookkeeping related thereto and some minute taking for a private nonprofit corporation.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In contracting with the City, THDF submits information to a government entity. The City in turn creates data by developing loan applications, conducting audits, and providing accounting, book-keeping, and general record-keeping for THDF. The City finance director performs the work for THDF as part of her City work responsibilities. Therefore, pursuant to the definition of government data, the information the City collects, creates, maintains, and disseminates, pursuant to the agreement with THDF are government data subject to the Data Practices Act.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its opinion request, the City pointed to the following provision in the agreement between the City and THDF, implying that the data may be exempt from the Data Practices Act:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Nothing in this Agreement shall require any data or information not subject to the Minnesota Data Practices Act in the absence of this Agreement to be subject to the Minnesota Data Practices Act.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">To the extent that the provision attempts to remove government data administered by the City from the purview of the Data Practices Act, the provision does not apply. The City may not contract around its obligations under the Data Practices Act. Contracts contrary to law are unenforceable.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2: </strong>If the answer to Issue 1 is yes, how are the data classified?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless classified by statute, temporary classification, or federal law as not public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, the classification of the data depends upon the content. Data the City collects, creates, maintains, etc., pursuant to its work for THDF are presumptively public unless the City can identify a state statute, temporary classification (there are not any at this time), or federal law that classifies the data.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Data collected, created, and maintained by the City of Two Harbors pursuant to the City's contract to perform services for a non-government entity are government data subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.</li> <li>The classification of the data created by the City pursuant to its contract with THDF depends on the content; data are presumptively public unless there is a state statute or federal law that classifies it as not public.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">August 9, 2022</p>5362732669112022-11-23T14:02:41Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-534520" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-07-25T17:00:00ZA government entity asked whether a final disposition of disciplinary action occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) when the entity decided to discipline an employee, the employee grieved the discipline under a collective bargaining agreement but resigned during the grievance process, and the union representing the employee declined to elect that the grievance be referred to arbitration. The Commissioner opined that final disposition had occurred based on the language of section 13.43, subdivision 2(b) because the employee’s union failed “to elect arbitration within the time provided by the collective bargaining agreement.” Additionally, the employee’s resignation during the grievance process did not impact when the final disposition occurred.July 25, 2022; Metropolitan Council36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Metropolitan Council requested an advisory opinion from the Commissioner about whether a final disposition of a disciplinary action against an employee has occurred, pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(5).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Metropolitan Council investigated an employee. As a result of that investigation, the Council disciplined the employee. The discipline did not include discharge but was a “disciplinary action” as defined in the collective bargaining agreement; the employee continued to be employed by the Council.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The collective bargaining agreement establishes a grievance process and allows the union to refer the grievance to final and binding arbitration.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Consistent with that agreement, the employee’s union submitted a request for grievance on behalf of the employee; the grievance addressed matters other than whether the employee remained in Council employment. Several weeks after the union submitted the request for grievance, the employee submitted their voluntary resignation. The employee’s union proceeded with the grievance even though the employee was no longer a Council employee and the Council held Step 1 and Step 2 grievance hearings. The former employee attended and participated in both hearings.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Council issued its response to Step 2 grievance, maintaining the disciplinary action. The union elected not to refer the grievance to final and binding arbitration. Instead, the union formally withdrew its grievance filed on behalf of the former employee and the time to refer the grievance to arbitration expired. Under the terms of the collective bargaining agreement, any grievance not referred to arbitration within the time provided by the agreement “shall be considered waived” (emphasis in original).</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Has a final disposition of disciplinary action occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) when a government entity decides to discipline an employee, the employee grieves the discipline under a collective bargaining agreement but resigns during the grievance process, and the union representing the employee declines to elect that the grievance be referred to arbitration?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">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 types of personnel data designated as public and subdivision 4 provides that all other personnel data are private.</p> <p xmlns="http://www.w3.org/1999/xhtml">Specifically, section 13.43, subdivision 2(a)(5) designates “the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body” as public data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subdivision 2(b) states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>For the purposes of this subdivision, 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. 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. A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267576" title="Advisory Opinion 00-072" target="_blank">Advisory Opinion 00-072</a>, the Commissioner noted that section 13.43, subd. 2(b) establishes that the occurrence of a final disposition depends on whether the specific employee is subject to a collective bargaining agreement. In addressing whether a final disposition for a union employee had occurred while a grievance was still pending, the Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[I]n general, if an employee who is not covered by a collective bargaining agreement resigns after the government entity makes its final decision, then there has been a final disposition of disciplinary action. However, in this case, there is a collective bargaining agreement that provides for arbitration, which remains a possibility. The terms of the agreement allow a grievance to be filed either by the employee, or as is the case here, by the union on behalf of the employee. Thus, the statutory provision [addressing “In the case of arbitration proceedings…”] that governs discipline in the case of arbitration proceedings is directly applicable here. Accordingly, there has been no final disposition of the disciplinary action. Final disposition in this situation will occur when arbitration is either concluded, or is no longer a possibility.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, the Council noted that the outcome of past advisory opinions interpreting section 13.43, subds. 2(a)(5) and (b) appeared to depend on whether a collective bargaining agreement covered the employee subject to a disciplinary action. (See <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267946" title="Advisory Opinion 94-019" target="_blank">Advisory Opinions 94-019</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267595" title="Advisory Opinion 95-027" target="_blank">95-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267576" title="Advisory Opinion 00-072" target="_blank">00-072</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267686" title="Advisory Opinion 02-053" target="_blank">02-053</a>.) However, the Council added that “[t]he timing of the employee’s resignation—while the grievance process was ongoing and before the opportunity to refer to arbitration—also makes it unclear about how subdivision 2(b) should be applied in this case.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In assessing the facts, the Council wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Here, the employee was covered by a collective bargaining agreement. Therefore, following the guidance of past advisory opinions, one interpretation is that the Council should look to whether arbitration has concluded or remains a possibility to determine if there is a final disposition. Applying that interpretation, a final disposition of the disciplinary action occurred after the union withdrew its grievance on behalf of the employee. As a result, the employee failed to elect arbitration within the time provided by the collective bargaining agreement. There no longer was any possibility of an arbitration proceeding that could change the disposition of the disciplinary action.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that this analysis is the correct approach for the situation at hand.</p> <p xmlns="http://www.w3.org/1999/xhtml">The language of section 13.43, subd. 2(b) describes separate situations when a final disposition of a disciplinary action will occur. For employees who are not subject to a collective bargaining agreement, the final disposition occurs when the government entity makes a final decision determining that discipline is necessary.</p> <p xmlns="http://www.w3.org/1999/xhtml">When an employee is covered by a collective bargaining agreement, the final disposition does not occur immediately when the government entity decides to issue a disciplinary action. Rather, the final disposition occurs at the conclusion of any arbitration proceedings resulting from the matter or the employee’s failure to elect arbitration to contest the discipline within the appropriate time frame provided in the collective bargaining agreement.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2(b) also contemplates employee resignations in the context of disciplinary actions. Typically, when an employee resigns prior to a government entity’s decision to issue discipline as the result of a complaint, the data related to the complaint and investigation—other than the existence and status of the complaint—would remain private personnel data under section 13.43, subdivision 4. However, section 13.43, subd. 2(b) states, “Final disposition includes a resignation by an individual when the resignation occurs <em>after</em> the final decision of the government entity, or arbitrator.” (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">This language in subdivision 2(b) simply clarifies that once a government entity disciplines an employee, the individual can no longer resign from employment to keep data about the complaint and investigation private. Rather, the only way the disciplinary action and related data do not become public after discipline is imposed is when “an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the employee was covered by a collective bargaining agreement that permitted the employee’s union to grieve a Council decision to discipline an employee. Therefore, final disposition for any employee working under this specific agreement would occur upon the conclusion of arbitration proceedings or the union’s failure to elect arbitration within the time frame established by the collective bargaining agreement.</p> <p xmlns="http://www.w3.org/1999/xhtml">After the Council disciplined the employee, the union opted to initiate the grievance process through agreed-upon steps in the collective bargaining agreement. During these steps, the final disposition had not yet occurred because there was still an opportunity for the union “to elect arbitration within the time provided by the collective bargaining agreement.”</p> <p xmlns="http://www.w3.org/1999/xhtml">While the grievance process was ongoing, the employee resigned. However, the employee’s resignation was irrelevant to the final disposition. The Council disciplined a union employee, and, at that point, arbitration proceedings remained a possibility. Therefore, the resignation did not affect either the classification of the data nor whether final disposition had occurred under the language of 13.43, subd. 2(b).</p> <p xmlns="http://www.w3.org/1999/xhtml">After concluding the second step of the grievance process, the Council maintained the disciplinary action against the employee. The employee’s union then determined it would withdraw the grievance, and the time to request that the matter go to arbitration expired. Therefore, the language in section 13.43, subd. 2(b) stating “a final disposition occurs … upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement” was met.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, a final disposition of disciplinary action occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) when the time expired for the employee’s union to elect arbitration under the collective bargaining agreement. The employee’s resignation did not have an impact on when final disposition occurred.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that collective bargaining agreements may vary regarding the processes that entities must follow to impose disciplinary actions on employees subject to the agreement. Such variations leave open the possibility that the disciplinary processes under another agreement could result in a different outcome for whether and when a final disposition will occur under section 13.43, subd. 2(b). All government entities should closely review the specific terms of an applicable collective bargaining agreement and the language of section subdivision 2(b) when determining whether the final disposition of a disciplinary action against an employee has occurred.</p> <p xmlns="http://www.w3.org/1999/xhtml">Lastly, the Council asked about the appropriate classification of data documenting the fact that an employee resigned under these circumstances. Section 13.43, subd. 2(b) does not classify data. Rather, as noted above, the subdivision clarifies when final disposition of a disciplinary action has occurred for the purposes of section 13.43, subd. 2(a)(5).</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2(a)(3) designates that an individual’s “date of first and last employment” are public data. However, subdivision 2 does not designate data describing the fact that an employee resigned as public. Thus, the fact that an employee resigned is generally private under section 13.43, subd. 4 unless the resignation would be made public for other reasons described in subdivision 2, such as part of “the complete terms of any agreement settling any dispute arising out of an employment relationship.” (Section 13.43, subdivision 2(a)(6).)</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">A final disposition of disciplinary action has occurred for the purposes of Minnesota Statutes, section 13.43, subdivision 2(a)(5) because the entity decided to discipline an employee and the employee’s union did not elect arbitration within the time provided by the collective bargaining agreement. The employee’s resignation during the grievance process established under the collective bargaining agreement did not impact when the final disposition occurred.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">July 25, 2022</p>5345202667522664052664062022-07-26T04:45:34Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-533711" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-07-15T17:00:00ZA member of the public asked whether a township board of supervisors violated the Open Meeting Law when a quorum of the board held a private discussion before its noticed meeting, and whether the board violated the OML when it did not provide access to public meeting materials during its meeting. The Commissioner opined that if the board discussed public business before its noticed meeting, it violated the OML. The Commissioner further opined that the board violated the OML when it failed to provide access to public meeting materials in the meeting room pursuant to Minnesota Statutes, section 13D.01, subdivision 6.July 15, 2022; Hillman Township Board of Supervisors36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Andrew Jauhola requested an advisory opinion regarding the Hillman Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">In his opinion request, Jauhola stated that on November 16, 2021, the three-person Board held a regular meeting at the town hall starting at 7:00 p.m. However, members of the public, including Jauhola, arrived at the town hall up to 45 minutes before the scheduled meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Jauhola wrote that two Board supervisors were discussing matters behind a locked door prior to the 7:00 p.m. meeting. He noted another member of the public overheard the supervisors discussing town business while reviewing meeting materials in front of them, including a court document concerning the township. Specifically, Jauhola maintained that one supervisor said, “‘I agree – I’ll approve’ while pointing at documents on the table in front of them.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to Jauhola’s description of the November 16, 2021, meeting, the Board stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The facts as alleged are simply not accurate and do not warrant a point-by-point rebuttal. There was no secret pre-meeting to discuss Town business that evening. Two Fox 9 news trucks were at the Town Hall before any of the supervisors arrived. To the extent any conversations occurred among supervisors in the minutes before calling the meeting to order, they were of a personal nature and did not involve a discussion of Town business…The idea a quorum of the supervisors would arrive at the Town hall early with news trucks in the parking lot, enter the hall, lock the door behind them, and hold a ‘secret’ meeting about Town business with members of the public who arrived 45 minutes early at the window with their ears pressed against the glass is beyond belief.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Jauhola added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Hillman Township Supervisors failed to provide public copies for multiple documents at multiple public open board meetings. These documents were meeting minutes and correspondences [</em>sic<em>] that were discussed in front of the public at these meetings…. The supervisors denied every documented instance here, including from the months of Sept, Oct, Nov, and Dec of 2021.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Board responded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>It appears that much of what is being referenced in the [advisory opinion] request is to letters and emails the Town identified as hate mail directed to individual supervisors. These letters, some of which contained explicit language, were not distributed to the other supervisors and did not relate to an action item on the agenda.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">However, the Board stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>It does appear the Town Board misunderstood how to handle unapproved minutes. It believed unapproved minutes were not public and the minutes were not to be released until they were formally approved. The concern being that the language of the minutes may change at the time of approval and so did not want to appear to be misleading the public by distributing unapproved minutes or have two different versions of the minutes in the public.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the Hillman Township Board of Supervisors violate the Open Meeting Law when a quorum of the Board met before its scheduled meeting on November 16, 2021?</li> <li>Did the Hillman Township Board of Supervisors provide appropriate access to its public meeting materials at its September 14, 2021, October 19, 2021, November 16, 2021, and December 14, 2021, meetings pursuant to Minnesota Statutes, section 13D.01, subdivision 6?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue #1</strong>: Did the Hillman Township Board of Supervisors violate the Open Meeting Law when a quorum of the Board met before its scheduled meeting on November 16, 2021?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a township is a public body subject to the law. (Minnesota Statutes, section 13D.01, subdivision 1(b)(5).)</p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held, “‘Meetings’ subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body … at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies…. This includes meetings at which information is received which may influence later decisions of such bodies.” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 6 (Minn. 1983). The Minnesota Supreme Court has also determined that the purposes behind the law “are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.” (Footnote omitted.) <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002).</p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the comments provided, the parties dispute whether a quorum of the Board discussed public business before the November 16, 2021, meeting. The Commissioner is unable to resolve issues of fact. If the two Board supervisors, which is quorum of the Board, discussed public business outside of its noticed meeting, the Board did not comply with the requirements of the OML. If the two Board supervisors discussed matters unrelated to public business, there was no OML violation.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that, like many townships, there are three supervisors on the Board. When a discussion between two individuals constitutes a quorum, township boards must take extra care to avoid discussion of public business outside of a noticed meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue #2</strong>: Did the Hillman Township Board of Supervisors provide appropriate access to its public meeting materials at its September 14, 2021, October 19, 2021, November 16, 2021, and December 14, 2021, meetings pursuant to Minnesota Statutes, section 13D.01, subdivision 6?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.01, subd. 6, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) distributed at the meeting to all members of the governing body;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) distributed before the meeting to all members; or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) available in the meeting room to all members;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Jauhola contends that the Board did not make available certain meeting materials, including correspondence and draft meeting minutes, at its September 14, 2021, October 19, 2021, November 16, 2021, and December 14, 2021, meetings.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board indicates that the correspondence Jauhola references were directed to individual supervisors and “were not distributed to the other supervisors.” If the materials were not distributed to all members of the public body at or before the meeting, and are unrelated to the agenda items, the materials are not subject to the meeting material requirements of section 13D.01, subd. 6.</p> <p xmlns="http://www.w3.org/1999/xhtml">In the Board’s comment, its legal counsel stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I have since advised the Town Board that unapproved minutes should be provided to the public upon request, marked as unapproved, and included [in] the public packet at the meeting. Even though the Town does not prepare a traditional meeting packet that is distributed to members in advance of a meeting, I did inform the Town Board of the requirement to prepare and make available at the meeting a public packet containing the materials identified in Minnesota Statutes, section 13D.01, subdivision 6(a). Though, again, with the exception of the unapproved minutes, it appears the requested documents in this case constituted correspondence sent to individual supervisors that did not satisfy the statutory criteria requiring them to be included in the public packet at the meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Townships located in non-metropolitan counties, such as Kanabec County, are not subject to the Minnesota Government Data Practices Act. (See Minnesota Statutes, section 13.02, subdivision 11.) As a result, the OML’s requirements regarding public access to meeting materials is the primary mechanism for transparency and access to government information in these townships.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates the Board’s efforts to improve its process to comply with the OML in the future. However, the Board did not meet the requirements of section 13D.01, subd. 6, when it failed to make the unapproved meeting minutes available in the meeting room for inspection by the public.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>If a quorum of Board members discussed public business before its November 16, 2021, meeting, then the Board did not comply with the OML because it held a meeting without proper notice.</li> <li>The Board did not comply with the requirements of section 13D.01, subd. 6 when it did not make the unapproved meeting minutes available in the meeting room for public inspection during its meetings.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">July 15, 2022</p>5337114618692662552022-07-18T04:00:09Z266258266301266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-531393" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-06-17T17:00:00ZA member of the public asked whether a city responded appropriately to a request for a copy of body camera data that was presented as evidence in court. The city argued that the request should have been directed to the prosecutor’s office, and that the body camera data were private pursuant to Minnesota Statutes, section 13.825. The Commissioner determined that the city did not respond properly to the data request because prosecutors are not law enforcement agencies for purposes of Minnesota Statutes, section 13.82, and the obligation to provide access to data under this section resides with the law enforcement agency. Further, the body camera data are public pursuant to section 13.82, subdivision 7 as data presented as evidence in court.June 17, 2022; City of Minneapolis36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Joe Augustine, on behalf of KSTP-TV, asked for an advisory opinion regarding his right to obtain copies of data from the City of Minneapolis (“the City”) under Minnesota Statutes, Chapter 13 (Data Practices Act). The City submitted comments in response to Augustine’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Augustine submitted a data request to the City for a copy of body camera data that was submitted as evidence in court. As part of his advisory opinion request, Augustine provided a copy of the “Court’s Order, which documents that the body camera data was submitted, accepted, and relied on by the Court as evidence in the [criminal] proceeding.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The City’s response to Augustine’s data request stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This request is denied under MN statute [</em>sic<em>] 13.825. The BWC recording is classified as private data associated with the subject(s) seen and heard in the video. The data subject(s) of the video requested have not provided authorization for us to release the video to you, as is required by law and our own City policy. You may be requesting the video because you believe it was used in an exhibit in court, which is considered public data under statute 13.82. However, Minneapolis was not the prosecuting agency in this case and did not enter the video as an exhibit in court. The prosecuting agency is responsible for submitting court exhibits, and you must contact that agency to receive an exact copy of the exhibits.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Minneapolis properly respond to a request for body camera data that was presented as evidence in court?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies all government data as public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.825 classifies “portable recording system data” – audio or video data collected by a portable recording system worn by a peace officer (commonly referred to as body camera data) – as private or nonpublic, with exceptions. Minnesota Statutes, section 13.825, subdivision 2(a)(3) states, “portable recording system data that are active criminal investigative data are governed by section 13.82, subdivision 7.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.82, subdivision 7, classifies active criminal investigative data collected or created to prepare a case against a person for a crime or offense, “for which the agency has primary investigative responsibility,” as confidential or protected nonpublic. Section 13.82, subd. 7 also states, “[a]ny investigative data presented as evidence in court shall be public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, the City provided several arguments to support its decision to deny access to the requested body camera data. The City stated, it “is not required to meet with the County Attorney to create new data. ‘Government data’ means all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use. The data submitted into evidence by the prosecuting county attorney does not constitute ‘government data’ of the City.” The Commissioner disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.82 applies to law enforcement agencies. In <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267628" title="Advisory Opinion 01-079" target="_blank">Advisory Opinion 01-079</a>, the Commissioner interpreted the definition of a “law enforcement agency” to include county attorneys for purposes of section 13.82. However, the Minnesota Attorney General’s Office disagreed with the Commissioner’s interpretation in a February 12, 2002, letter, noting that the language and legislative history of section 13.82 made clear that prosecuting authorities were not included as law enforcement agencies for the purposes of this section. As a result, law enforcement agencies, rather than prosecuting authorities, are obligated to respond and provide access to data classified by section 13.82.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City also noted that it “has no knowledge of whether or how any data was redacted, enhanced, stabilized, or otherwise prepared for use as evidence in trial.” The City must have procedures to insure prompt and appropriate access to data (see Minnesota Statutes, section 13.03, subdivision 3). Thus, it is incumbent on the City to determine which data are responsive to a data request. One way the City can accomplish this is to consult with the County Attorney to determine which part of the City’s investigative record the County Attorney’s Office has submitted as evidence in court.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City also argued that section 13.82, subdivision 7 is applicable to active investigative data, and as the criminal matter in which the body camera data at issue was presented as evidence in court has now been dismissed, the investigation is now inactive and the public body camera data are classified as private pursuant to section 13.825. The Commissioner disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.825, subd. 2(a)(3) indicates that body camera data are “governed by section 13.82, subdivision 7” while the data are part of an active criminal investigation. Additionally, section 13.82, subd. 7 contains a trigger establishing that “[a]ny investigative data presented in court shall be public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the City was maintaining the body camera data at issue as active criminal investigative data. While the criminal investigation was still active, and governed by section 13.82, subd. 7, prosecutors presented portions of the body camera data as evidence in court as part of a criminal prosecution. As a result, the portions of the body camera data presented as evidence in court became and remain public data. Any remaining body camera data that were not presented as evidence would revert to the applicable classifications governed under section 13.825 when the criminal investigation became inactive.</p> <p xmlns="http://www.w3.org/1999/xhtml">This analysis is also supported by the language in Minnesota Statutes, section 13.03, subdivision 4(e):</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>To the extent that judicial branch data are disseminated to government entities by the judicial branch, the data disseminated shall have the same level of accessibility at the government entity receiving them as they had at the judicial branch entity providing them. If the data have a specific classification in state statute or federal law, the government entity must maintain the data according to the specific classification.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, section 13.03, subdivision 12 provides, “[p]leadings, as defined by court rule, served by or on a government entity, are public data to the same extent that the data would be public if filed with the court.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Both of these provisions, along with the public trigger for active criminal investigative data presented as evidence in court pursuant to section 13.82, subd. 7, reflect the Legislature’s intent for judicial branch data, or data presented in court, to have the same level of accessibility at government entities as the data would possess at the judicial branch.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that the Legislature enacted section 13.825 in 2016 and has not substantially changed its provisions since that time. The Commissioner is aware that in the intervening years, both members of the public and law enforcement agencies have identified several areas where the requirements could be clarified. This opinion highlights one such area. The Commissioner encourages the Legislature to review the provisions of section 13.825 and in particular its interaction with other provisions governing law enforcement data, to determine whether it best reflects the Legislature’s intent with regard to the protection of and access to this type of data.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Minneapolis did not properly respond to a request for body camera data that was presented as evidence in court.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 17, 2022</p>5313933785802022-11-28T13:57:59Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-521741" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-03-22T13:00:00ZA member of the public asked whether a township board of supervisors violated the Open Meeting Law when it directed him to access its record of votes that were contained in meeting minutes posted on its website. The Commissioner opined that the board violated the Open Meeting Law because the plain language of Minnesota Statutes, section 13D.01, subdivision 5 requires a public body to provide access to its voting record in the location where it is maintained regardless of the availability of the records online.March 22, 2022; Turtle Lake Township Board of Supervisors36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Billy Ayers requested an advisory opinion regarding the Turtle Lake Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board provided comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In his request, Ayers wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[Emails to the town officials] lay out the Chairman of the Turtle Lake Township Board of Supervisors denying me the opportunity to review the journals of the township at the location where they are stored. It has to be noted that the township website does post minutes but only for the previous 12 months, and all records are actually stored at the township hall.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In the documentation provided by Ayers, the Board wrote in email correspondence that its “voting history is documented on Board minutes and [can] be accessed on the Township website.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p><em>Did the Turtle Lake Township Board of Supervisors provide appropriate access to its votes, pursuant to the requirements of the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivisions 4 and 5.</em></p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” (See also <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1 (Minn. 1983), stating “The [OML] will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies governed by § 471.705.”)</p> <p xmlns="http://www.w3.org/1999/xhtml">In 2021, the Minnesota Legislature amended Minnesota Statutes, section 13D.01, subdivisions 4 and 5 regarding requirements for how public bodies must document votes.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 4 now requires, in part:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) The votes of members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal or minutes.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 5 states, “[t]he journal or any minutes used to record votes of a meeting subject to this chapter must be open to the public during all normal business hours where records of the public body are kept.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267355" title="Advisory Opinion 07-014" target="_blank">Advisory Opinion 07-014</a>, the Commissioner addressed a situation regarding a township board of supervisors that did not have any employees and its journal of votes was available only at the town hall during board meetings or upon request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In considering this situation, the Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Given the Supreme Court’s direction to construe Chapter 13D in favor of public access, it is the Commissioner’s opinion that restricting public access to the journals to the night of the monthly Board meeting is not in compliance with Chapter 13D. The Board should establish more times when the journals are available at the Town Hall or consider changing the location where the journal is stored to one that allows requesters more access.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266653" title="Advisory Opinion 08-034" target="_blank">Advisory Opinion 08-034</a>, the Commissioner addressed a situation regarding whether a state task force, which did not have a primary office location but received administrative support from the Department of Commerce, could publish its journal of votes on a website to satisfy the OML’s requirements related to public access to the journal.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner wrote, “if the Task Force wishes to post the members’ votes on its website, it may do so, but this is not sufficient. The Task Force/Department of Commerce also must maintain a journal of the votes for anyone who wishes to inspect or obtain a copy.” (See also <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-461873" title="Advisory Opinion 21-001" target="_blank">Advisory Opinion 21-001</a>, Issue 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he Town Board recorded votes, and made records of all votes regarding the hiring of a clerk, and those minutes were open to the public. The Town and the Town Clerk do not maintain normal business hours at the Town Hall, and therefore, in accordance with Town policy, the Town makes arrangements for residents to receive and have access to minutes. Billy Ayers, and all residents of the Town, are provided access to minutes and the records of votes recorded in those minutes. By recording the votes in meeting minutes, posting the minutes to the Town’s website and having the minutes open to the public the Town complied with Minnesota Statutes, section 13D.01, subd.’s [sic] 4 and 5.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The voting record must be “open to the public during all normal business hours where records of the public body are kept.” Here, the Board acknowledged that the Town does not maintain normal business hours where the records are kept and that it posts some meeting minutes documenting its voting record on the Board’s website. The combination of these factors frustrates both the plain language and the spirit of the law.</p> <p xmlns="http://www.w3.org/1999/xhtml">Regardless of the availability of the records online, the plain language of the law requires public bodies to provide access to the voting record in the location where it is maintained. Thus, the Board did not provide appropriate access to its votes to the extent that it did not permit Ayers to access meeting minutes at the Town Hall but directed him to access meeting minutes on its website.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges that the OML contains various provisions that may not reflect contemporary business practices or the technology available to public bodies today. The Legislature has updated other provisions of the OML to allow some public bodies to meet certain requirements by posting information on a website. (E.g., Minnesota Statutes, section 13D.04, subdivision 6, allows state-level public bodies to post notices online.) However, the provision at issue in this opinion has not been updated, and the Commissioner is necessarily limited to rendering an opinion based on the existing language of the law. She encourages the Legislature to review the OML for opportunities to address the practical implementation of the law to meet the current expectations and abilities of both public bodies and the public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner has a note regarding a disagreement between Ayers and the Board about whether certain Board members’ work on hiring a new clerk should be documented as votes in the Board’s meeting minutes. Section 13D.01, subd. 4 requires public bodies to maintain a record of its votes only from meetings that “are required by this section to be open to the public” or “on each appropriate of money, except payments of judgments, claims, and amounts fixed by statute.” To the extent that the members’ work to hire a new clerk was not required to be conducted during an open meeting under 13D, the Board is not obligated to document such work or decisions in its meeting minutes.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Turtle Lake Township Board of Supervisors did not provide appropriate access to its votes, pursuant to the requirements of the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivisions 4 and 5.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 22, 2022</p>5217412663452671042022-06-21T13:35:58Z266258513961266262266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-514480" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2022-01-04T18:00:00ZA member of the public asked whether a joint powers entity responded appropriately to a request for a copy of its data access policies as well as to a request for data about himself made pursuant to Minnesota Statutes, section 13.04. The Commissioner determined that the entity did not respond properly to the request for a copy of its policies because the entity had not yet adopted the required access policies at the time of the request. Additionally, the Commissioner noted that the entity contacting the requester during the afternoon of the day the 10-day deadline expired to offer an opportunity to inspect data did not reasonably meet the requirements of section 13.04, subdivision 3. As a result, the Commissioner opined that the entity did not respond appropriately to the data request made by a data subject. Finally, the Commissioner provided guidance on government entities’ responsibilities related to large data requests and internal procedures that consider respectful workplace policies.January 4, 2022; SouthWest Transit36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Mark R. Krampf requested an advisory opinion from the Commissioner regarding SouthWest Transit’s (SWT) response to a request for a copy of the entity’s written data access policies, as required by Minnesota Statutes, section 13.025, and a request to access stored public and private data about himself made pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. SWT submitted comments in response to the advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">On November 5, 2021, Krampf requested SWT to inform him whether he was the subject of stored government data. If he was the subject of stored data, Krampf further requested to inspect the data immediately or within 10 days, excluding Saturdays, Sundays and legal holidays, if immediate inspection was not possible, pursuant to Minnesota Statutes, section 13.04, subdivision 3.</p> <p xmlns="http://www.w3.org/1999/xhtml">On November 10, Krampf contacted the chair of the SouthWest Transit Commission, the governing board of SWT, to learn about the status of the request. During the conversation, the chair noted that he was not aware of whether SWT maintained a written data access policy nor did he believe he was the responsible authority for SWT. The chair informed Krampf that an employee of SWT would respond to the request to access data.</p> <p xmlns="http://www.w3.org/1999/xhtml">On November 11, SWT contacted Krampf to confirm receipt of the November 5 request. Krampf then requested on November 11 and 13 that SWT provide him with its written data access policies. SWT acknowledged the requests for its policies on November 15.</p> <p xmlns="http://www.w3.org/1999/xhtml">At 1:45 p.m. on November 22, SWT sent Krampf an email informing him it had compiled responsive data and proposed times on November 30, December 1, and December 2 to inspect the data at its offices. Krampf promptly responded via email that the 10-day statutory deadline to provide access to the data was that day. SWT then responded by email that the data could be inspected at its offices on November 22 between 4 p.m. and 5 p.m., but, if that time did not work, Krampf could inspect the data at the times previously offered.</p> <p xmlns="http://www.w3.org/1999/xhtml">On November 29, SWT adopted the Commissioner’s Model Policy for the Public and Model Policy for Data Subjects, and the following day it provided Krampf with the specific links where the policies were posted on its website.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did SouthWest Transit respond appropriately to a request for a copy of its data access policies required under Minnesota Statutes, section 13.025?</li> <li>Did SouthWest Transit respond appropriately to a data request made November 5, 2021, by a data subject, pursuant to Minnesota Statutes, Chapter 13?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The cities of Eden Prairie, Chanhassen, and Chaska formed SouthWest Transit as a joint powers entity in 1986 pursuant to Minnesota Statutes, section 471.59.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that joint powers entities are statewide systems as defined in Minnesota Statutes, section 13.02, subdivision 18. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267653" title="Advisory Opinion 95-040" target="_blank">Advisory Opinions 95-040</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267704" title="Advisory Opinion 07-011" target="_blank">07-011</a>.) Therefore, SWT is subject to the requirements of Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Did SouthWest Transit respond appropriately to a request for a copy of its data access policies required under Minnesota Statutes, section 13.025?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.03, requires a government entity to respond in an appropriate and prompt manner and within a reasonable time when receiving a data request from a requester who is not the subject of the data. (See section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.025 requires a government entity’s responsible authority to prepare “a written data access policy” (subdivision 2) as well as “a written policy of the rights of data subjects under section 13.04 and the specific procedures used by the government entity for access by the data subject to public or private data on individuals” (subdivision 3). (See also <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267246" title="Advisory Opinion 04-049" target="_blank">Advisory Opinions 04-049</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266477" title="Advisory Opinion 05-003" target="_blank">05-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266427" title="Advisory Opinion 13-007" target="_blank">13-007</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-375057" title="Advisory Opinion 19-002" target="_blank">19-002</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, section 13.025, subdivision 4 requires the policies to be “easily available to the public” by distributing free copies, posting the policies in a conspicuous place within the entity, or posting the policies on the entity’s website.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Legislature codified the current language of section 13.025 in 2012. Additionally, section 13.025, subdivisions 2 and 3 require an entity’s responsible authority to update these policies “no later than August 1 of each year.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Rules, Chapter 1205 also provides guidance about access procedures for members of the public and data subjects.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, SWT wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>When these requests were made, SouthWest Transit was in the midst of responding to two other requests by the requester. Given limited staff resources, SouthWest Transit did its best to respond to the requests in a timely fashion. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In addition, SouthWest Transit acknowledges that, due to a miscommunication and oversight, SouthWest Transit had not previously adopted the data access policies required under Minn. Stat. § 13.025. The request for access to or copies of these policies alerted SouthWest to its failure to have adopted the policies. SouthWest promptly set about to adopt the policies, specifically using the Commissioner’s model policies. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The requirement for government entities to create and maintain data access policies is long-standing. Here, SWT’s failure to create the required access policies under section 13.025 meant that it could not possibly respond appropriately to Krampf’s request for access made on November 13 nor could it point Krampf to where the policies would be “easily available” to him.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates SWT’s efforts to immediately comply with section 13.025 upon recognizing it had not yet adopted the required data access policies. However, SWT did not respond appropriately to a request for a copy of its data access policies required under Minnesota Statutes, section 13.025.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did SouthWest Transit respond appropriately to a data request made November 5, 2021, by a data subject, pursuant to Minnesota Statutes, Chapter 13?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.04, subdivision 3 requires:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Upon request to a responsible authority or designee, an individual shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private or confidential. Upon further request, an individual who is the subject of stored private or public data on individuals shall be shown the data without charge and, if desired, shall be informed of the content and meaning of that data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Further, subdivision 3 requires a government entity to “comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.” (Minnesota Statutes, section 13.04, subdivision 3.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-340460" title="Advisory Opinion 18-005" target="_blank">Advisory Opinion 18-005</a>, the Commissioner observed that “[w]hen a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access. … Though the amount of data created and maintained by government is ever-increasing due to the transition to electronic and digital records, the strict time limit to provide access to data about data subjects remains the same.” (See also <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267853" title="Advisory Opinion 03-026 " target="_blank">Advisory Opinions 03-026</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267820" title="Advisory Opinion 04-070" target="_blank">04-070</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267728" title="Advisory Opinion 14-006" target="_blank">14-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Commissioner recognized in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-268014" title="Advisory Opinion 03-030" target="_blank">Advisory Opinion 03-030</a> that “circumstances can arise that make it more difficult for government entities to fulfill their duties under Chapter 13. … The statute does not provide additional time for mitigating circumstances.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, SWT wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The deadline [to provide inspection access] was November 22, 2021. The requester appears to agree that this date was the statutory deadline. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The requester expressly asked SouthWest to search all of its stored data “from the beginning of time.” … Although SouthWest Transit is a relatively small government body, like all government bodies in the digital age, “the amount of data created and maintained by [it] is ever increasing.” … SouthWest Transit asked the requester for assistance to help narrow SouthWest Transit’s search and more quickly identify responsive data. The requester declined to provide any such assistance. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Southwest Transit notified the requester on November 22, 2021 that the requested data had been collected for inspection. … Accordingly, SouthWest Transit needed to coordinate having an employee available for the inspection. In addition, [when considering personal relationships between the requester and specific SWT staff], SouthWest Transit determined that, in the interests of the safety of its staff and property, a law enforcement officer should be on site whenever the requester is inspecting data. Accordingly, SouthWest Transit needed to coordinate with local law enforcement regarding the dates and times for potential inspection. However, when the requester objected to future dates and times, SouthWest Transit offered to make the data available for inspection on November 22, 2021. The requester chose to refuse to inspect the data on that date.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The requester later requested that the data be made available on December 16 or December 17. SouthWest Transit again needed to coordinate scheduling with both an appropriate employee and local law enforcement. SouthWest Transit proposed December 16, 2021, between 2:30 p.m. and 4:30 p.m., and asked the requester to “respond when you plan to arrive so we can have the necessary staff on site to grant you inspection access.” … [T]he requester arrived during the proposed time without any notice.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>… SouthWest Transit permitted the requester to visually inspect the data. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Accordingly, SouthWest Transit responded appropriately to a data request made November 5, 2021 by a data subject, pursuant to Minnesota Statutes, Chapter 13.</em> [Citations throughout omitted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.04, subdivision 3 requires government entities to provide access to the subject of stored data “immediately, if possible” or “<em>within</em> ten [business] days of the date of the request.” (Emphasis added.) Based on the plain language of the law, the 10-day deadline is strict and does not provide exceptions for mitigating circumstances despite the challenges it may pose for small government entities that must search through a substantial amount of electronic and digital data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, SWT appeared to agree that it could not provide immediate access to data that Krampf requested. Therefore, it was obligated to provide him with access to the data by the end of its business day on November 22, 2021, under the requirements of section 13.04, subdivision 3.</p> <p xmlns="http://www.w3.org/1999/xhtml">SWT contacted Krampf in the afternoon of November 22 to schedule a time for inspection beyond the statutorily-required deadline. SWT then offered the opportunity to access the data on November 22 only after Krampf replied that the 10-day deadline expired that day. SWT’s latter response came at 3 p.m. on November 22 and offered the opportunity to inspect data from 4 p.m. to 5 p.m., which presumably was the end of its business day.</p> <p xmlns="http://www.w3.org/1999/xhtml">Although it may have been possible for Krampf to inspect data on November 22, a meaningful opportunity to inspect data by the expiration of the 10-day deadline was extremely limited. The Commissioner does not believe that SWT’s same-day offer that Krampf could inspect responsive data from 4 p.m. to 5 p.m. on November 22 reasonably met the requirements of section 13.04, subdivision 3 when considering the totality of the facts and the strict requirements of the law.</p> <p xmlns="http://www.w3.org/1999/xhtml">It is the Commissioner’s understanding that Krampf has since been able to inspect the data about himself maintained by SWT. Nonetheless, SWT did not respond appropriately to a data request made November 5, 2021, by a data subject, pursuant to Minnesota Statutes, Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has an additional note about SWT’s comments in its response regarding the number and size of these requests and “the harassing nature of the requester’s behavior.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act does not contain an exception allowing a government entity to deny access to data because a request results in a large amount of data that must be compiled and reviewed. Additionally, both <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267857" title="01-031" target="_blank">Advisory Opinions 01-031</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267689" title="Advisory Opinion 01-034" target="_blank">01-034</a>, which SWT cites in its response when asking whether it is obligated to further respond to Krampf’s requests, contained the following disclaimer:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner wishes to make clear that the conclusion he reached in this opinion is based on a unique and very specific set of facts. The outcome is in no way intended to suggest that a government entity does not have to respond to a data request merely because responding will be costly or time-consuming.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner emphasizes that the outcomes of those opinions cannot be broadly applied, and those opinions considered specific situations where a requester, who had long-standing disputes with the entities at issue, made large requests while rarely following up to access data. Additionally, it is not within the Commissioner’s authority to determine whether particular behavior is harassing. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267500" title="Advisory Opinion 03-046" target="_blank">Advisory Opinion 03-046</a>).</p> <p xmlns="http://www.w3.org/1999/xhtml">However, these limitations — and the requirements of Chapter 13, generally — do not mean that government entities and their staff must tolerate harassing or threatening behavior from data requesters. All entities have discretion to determine how best to insulate employees from overt acts of harassment or hostility.</p> <p xmlns="http://www.w3.org/1999/xhtml">As noted above, the Data Practices Act does not have a mechanism that relieves entities of their obligation to respond to a request, and all entities must have internal procedures to respond appropriately and promptly to requests. In developing these procedures, government entities may consider their respectful workplace policies and obligations to employees to prohibit harassment or other hostile and threatening acts.</p> <p xmlns="http://www.w3.org/1999/xhtml">As a final consideration, both data requesters and government entities should act reasonably, respectfully, and in good faith when requesting access to data and during the facilitation of such access. The Commissioner urges all data requesters and government entities to conduct themselves in ways that help achieve the underlying policy goals of the Data Practices Act.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>SouthWest Transit did not respond appropriately to a request for a copy of its data access policies required under Minnesota Statutes, section 13.025.</li> <li>SouthWest Transit did not respond appropriately to a data request made November 5, 2021, by a data subject, pursuant to Minnesota Statutes, Chapter 13.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 4, 2022</p>5144802670123750582024-10-07T16:53:57Z266258266263<custom:Link urlOnly="true" type="Component" destination="tcm:36-512379" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-12-08T21:59:37ZA parent asked the Commissioner whether a school district complied with the Data Practices Act and the federal Family Education Rights and Privacy Act (FERPA) when it disclosed the parent's student's directory information to a local newspaper. The Commissioner concluded that the District did not comply with the law because the parent had opted out of directory information disclosures.December 8, 2021; ISD 51, Foley Public Schools36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2021). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">X (a pseudonym used pursuant to section 13.072, subdivision 4) requested an advisory opinion about a determination that Independent School District 51 – Foley Public Schools (District) – made regarding data about X’s student, Y, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">X provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the beginning of each school year… I provide the Superintendent of Foley Public Schools (referred to as District hereafter) with a written letter requesting non – disclosure of Directory Information (FERPA (§ 99.37(a)(2)). For your reference, I have enclosed a copy of the letter. Under the provisions of the Family Educational Rights Privacy Act (FERPA) of 1974 (20 U.S.C. § 1232g; 34 CFR Part 99), we have submitted the request of non - disclosure.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In the Benton County News newspaper…, my child’s name [Y] is listed in the Honor Roll section of the newspaper. For your reference, I have enclosed a screen capture of the Honor Roll with a pencil pointing to my child’s name. According to the District’s Policy 515 Protection and Privacy of Pupil Records, Honors and Awards Received are not listed as Directory Information.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Independent School District 51, Foley, comply with Minnesota Statutes, Chapter 13, when it disclosed the name of a student on the honor roll to a local newspaper after the student opted out of directory information disclosures?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">“Educational data” are, “data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student.” (See Minnesota Statutes, section 13.32, subdivision 1.) Federal law defines an “education record” as, “those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” (See 34 C.F.R. 99.3.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies most data relating to students as private and incorporates the provisions of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g, and its regulations, 34 C.F.R. Part 99. (Section 13.32, subd. 1.) Both laws provide for access rights of students and their parents and privacy protections that limit access by others.</p> <p xmlns="http://www.w3.org/1999/xhtml">Private educational data are not accessible to the public and may only be shared with individuals designated as school officials by an educational agency or institution, with the informed consent of the parents or eligible students, or with a specific authorization in law. (See 34 CFR 99.31, Minnesota Statutes, section 13.05, subdivision 4, and Minnesota Rules 1205.0400.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Directory information is an exception to the private classification of data about students. “‘Directory information’ means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." (See 34 CFR 99.3). Directory information may include a student’s name, address, photograph, participation in sports or activities, awards, and honors, among other data elements. Under Minnesota law, data that a school properly designates as directory information are public. (See section 13.32, subdivision 5, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267591" target="_blank">Advisory Opinions 01-078</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/268007" target="_blank">04-011</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267868" target="_blank">04-065</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267142" target="_blank">09-021</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Public schools may also designate certain information as limited directory information. (See 34 CFR 99.37(d) and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266966" target="_blank">Advisory Opinion 14-009</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Parents and eligible students have the right to opt out of all or part of a public school’s designation of directory information. (See 34 CFR 99.37(a).) The result of the opt-out is that designated directory information remains private data on the student.</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the Commissioner, the superintendent wrote on behalf of the District, “I have and continue to notify parties in our school system regarding the denial of directory information in relation to this family. The honor roll publication was an oversight at the high school level.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner appreciates the District’s candor. X has opted out of all of the District’s directory information disclosures about Y. Therefore, identifiable data about Y are private data. By releasing Y’s name to the newspaper without the consent of Y’s parents, the District did not comply with the Data Practices Act and FERPA.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner offers the following additional comments. The Commissioner reviewed the District’s Policy 515 on the protection and privacy of pupil records. The District’s definition of “directory information” is taken directly from the FERPA regulations. It contains awards and honors (not relevant to the conclusion here, as X opted out of all disclosures about Y), but the policy also uses the phrase “includes, but is not limited to,” prior to listing the various elements that the District could designate as directory information.</p> <p xmlns="http://www.w3.org/1999/xhtml">The imprecise language in the District’s notice does not seem to provide parents and students with the information needed to make informed decisions about opting out of directory information disclosure. The policy seems to suggest that the District may add to the list of directory information after it provides its annual notice to parents. The Commissioner encourages the District to revisit its policy to make clear which specific data elements it has designated as directory information or limited directory information, so parents and eligible students can make informed decisions about their rights under the law.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> Independent School District 51, Foley, did not comply with Minnesota Statutes, Chapter 13, when it disclosed the name of a student on the honor roll to a local newspaper after the student opted out of directory information disclosures. <p xmlns="http://www.w3.org/1999/xhtml"><br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 8, 2021</p>5123792663162024-08-06T14:54:12Z266258266293266775<custom:Link urlOnly="true" type="Component" destination="tcm:36-511344" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-11-29T15:19:31ZA city asked the Commissioner whether data in a recording made by an employee on a personal device and uploaded to the city’s computer system was government data, subject to the Data Practices Act. If so, the city asked how such data were classified. In reviewing its own policies, the city determined that the storage of the data on government computer systems did not fall within the employee’s limited ability to use city technology for personal reasons. As a result, the Commissioner agreed with the city’s assessment that the data were government data. The Commissioner also opined that any data in the recording in which an employee is an identifiable subject are personnel data classified by Minnesota Statutes, section 13.43, and any other data that are not on individuals are presumptively public unless classified by another law. November 29, 2021; City of Golden Valley36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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. …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <ol> <li>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?</li> <li>If the answer to the first issue is yes, what is the classification of the data in the recording?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> 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?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">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.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266866" title="Advisory Opinion 08-028">Advisory Opinion 08-028</a>, 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 <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267413" title="Advisory Opinion 12-019">Advisory Opinion 12-019</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267561" title="Advisory Opinion 01-075">Advisory Opinion 01-075</a>, 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.”</p> <p xmlns="http://www.w3.org/1999/xhtml">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, “<em>Outside of work time</em>, 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.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The City added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> If the answer to the first issue is yes, what is the classification of the data in the recording?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that data that are not about an employee but about the work of government are not personnel data. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267577" title="Advisory Opinion 02-003 ">Advisory Opinions 02-003</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-421826" title="Advisory Opinion 20-003">20-003</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Commissioner has stated that Chapter 13 generally classifies data elements, not entire documents. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267558" title="Advisory Opinion 05-033">Advisory Opinions 05-033</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267001" title="Advisory Opinion 12-006">12-006</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267728" title="Advisory Opinion 14-006">14-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request to the Commissioner, the City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>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.</li> <li>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.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 29, 2021</p>5113442669022022-01-18T19:12:00Z266258266297266367<custom:Link urlOnly="true" type="Component" destination="tcm:36-503583" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-10-21T17:51:09ZA member of the public asked the Commissioner whether a County Sheriff’s Office responded appropriately to a data request, and a request for a “short description explaining the necessity” for a security information classification pursuant to Minnesota Statutes, section 13.37. The Commissioner concluded that the Sheriff’s Office did not respond appropriately to the data request, as the response was ambiguous and did not properly indicate whether responsive data existed. The Commissioner also concluded that the Sheriff’s Office did not respond appropriately to a request for a “short description explaining the necessity for the classification” after withholding responsive data as “security information” pursuant to section 13.37.October 21, 2021; Aitkin County Sheriff's Office36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.      <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Amanda Eubanks, on behalf of the Center for Protest Law &amp; Litigation (CPLL), asked for an advisory opinion regarding CPLL’s right to gain access to data from the Aitkin County Sheriff’s Office, under Minnesota Statutes, Chapter 13 (Data Practices Act). The Sheriff’s Office submitted comments in response to CPLL’s advisory opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">On May 26, 2021, CPLL submitted a data request to the Sheriff’s Office, which included requests for the following:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>All records reflecting communications, notes of discussions or meetings, and/or any correspondence involving R.H. </li> <li>All records reflecting communications, notes of discussion or meetings, and/or any correspondence involving T.K., including but not limited to, any emails involving a T.K.’s email address.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">On May 27, 2021, the Sheriff’s Office responded to CPLL’s data request. In response to request number 1 above, the Sheriff’s Office stated, “[w]e have no public data documents regarding this bullet despite a meeting with [R.H.]”</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to request number 2 above, the Sheriff’s Office stated, “We have four emails from that address and two of them are Security Data and not public per state MN statue [<em>sic</em>]. No other PUBLIC data that you request exists except for your request, which would be redundant to include. I will cut and paste the emails below.”</p> <p xmlns="http://www.w3.org/1999/xhtml">CPLL sent a follow up email to the Sheriff’s Office requesting the statutory citation for any not public data withheld. The Sheriff’s Office indicated it withheld not public data pursuant to Minnesota Statutes, section 13.37, subdivision 2. </p> <p xmlns="http://www.w3.org/1999/xhtml">CPLL sent an additional follow up to the to the Sheriff’s Office to confirm whether responsive data exists related to the first request above. CPLL further requested an explanation for the necessity of the security data classification, pursuant to Minnesota Statutes, section 13.37, subd. 2(b). </p> <p xmlns="http://www.w3.org/1999/xhtml">The Sheriff’s Office responded, stating, “I feel my first email is clearly written and apologize you are having a tough time understanding it. I am extremely busy and if time allows I will consider another response, but I do feel I have responded with the requirements of the law.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to follow up communications, the Sheriff’s Office stated, “[t]here is no data, public, private, or otherwise in the regards to [a portion of the data request not addressed in this advisory opinion]….The security data has security information contained in the email. (about operations) [<em>sic</em>].”<em> </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the Aitkin County Sheriff’s Office properly respond to a request for all data reflecting correspondence or meetings between the Aitkin County Sheriff’s Office and a specified individual?</li> <li>Did the Aitkin County Sheriff’s Office properly respond to a request for a “short description explaining the necessity for the classification” after withholding responsive data as “security information” pursuant to Minn. Stat. § 13.37?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300)</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Did the Aitkin County Sheriff’s Office properly respond to a request for all data reflecting correspondence or meetings between the Aitkin County Sheriff’s Office and a specified individual?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267452" target="_blank">Advisory Opinion 06-033</a>, the Commissioner discussed appropriate responses to data requests, and stated, “[u]pon receipt of a request for access to government data under Chapter 13, the entity must either provide the requestor with access to the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267353" target="_blank">Advisory Opinion 05-030</a> the Commissioner stated, “it is important for government entities to be clear and unambiguous in their communications regarding data practices requests.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Sheriff’s Office responded to request number 1 indicating there was no responsive public data. In additional communications, it was unclear whether there was responsive not public data, or whether no responsive data existed. </p> <p xmlns="http://www.w3.org/1999/xhtml">At the time of CPLL’s advisory opinion request, the Sheriff’s Office had not provided further clarification or confirmation about the existence of additional responsive data.</p> <p xmlns="http://www.w3.org/1999/xhtml">In the comments submitted to the Commissioner, the Sheriff’s Office stated, “[a]s I attempted to convey to the requestor, we have no data or correspondence other than what was provided [for request number 2], and a security document that was not related to the account.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the Sheriff’s Office’s comments, it appears there was no responsive data to CPLL’s request for all data reflecting correspondence or meetings between the Aitkin County Sheriff’s Office and the individual identified in request number 1. The Sheriff’s Office’s initial response did not fully convey that to CPLL and was ambiguous. Therefore, the County did not properly respond to CPLL’s first request. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did the Aitkin County Sheriff’s Office properly respond to a request for a “short description explaining the necessity for the classification” after withholding responsive data as “security information” pursuant to Minn. Stat. § 13.37?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies all government data as public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.37, subdivision 1(a), defines security information as: "government data the disclosure of which the responsible authority determines 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.” Section 13.37, subdivision 2, classifies security information as not public.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that section 13.37, subdivisions 1(a) and 2 may not be employed as a blanket classification. Government entities must evaluate the application of the security information classification on a case-by-case basis. The Commissioner has noted that when government entities exercise this discretion, they must have reason to believe that public disclosure of such data would “likely lead to substantial jeopardy.” (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267810" target="_blank">01-029</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267835" target="_blank">02-014</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.37, subdivision 2(b) states, “[i]f a government entity denies a data request based on a determination that the data are security information, upon request, the government entity must provide a short description explaining the necessity for the classification.” </p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the Sheriff’s Office indicated two emails that were responsive to CPLL’s second request above contained security information. CPLL subsequently requested an explanation of the necessity for the security information classification. Initially the Sheriff’s Office did not provide the requested explanation. In subsequent communications, the Sheriff’s Office stated, “[t]he security data has security information contained in the email. (about operations) [<em>sic</em>].”</p> <p xmlns="http://www.w3.org/1999/xhtml">The statement provided by the Sheriff’s Office suggests that the email contains security information “about operations.” CPLL asserts that the Sheriff’s Office did not properly respond to its request for a short description explaining the necessity of the security information classification. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with CPLL. Section 13.37, subdivision 2(b) requires government entities to provide a “short description explaining the necessity for the classification” upon request. Here, the Sheriff’s Office reiterated that it considered the data “security information” and stated the data are “about operations.” It is the Commissioner’s opinion that this statement does not meet the requirements of section 13.37, subdivision 2(b). </p> <p xmlns="http://www.w3.org/1999/xhtml">The Sheriff’s Office’s statement identifies a topic (“operations”) but does not include a description that explains why the security information classification is necessary. Merriam-Webster defines “explain” as “to make plain or understandable” or “to give the reason for or cause of.” The Commissioner believes a short description that sufficiently explains the necessity for the security information would make plain and provide reasons for such classification to help requesters understand why public disclosure of the information would be “likely to lead to substantial jeopardy.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Sheriff’s Office’s response that the data are “about operations” does not sufficiently make plain or provide reasons that would help the requester understand the necessity of the security information classification. As a result, the Sheriff’s Office did not respond appropriately to CPPL’s request for the short description required by section 13.37, subdivision 2(b).</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner notes that the Sheriff’s Office copied and pasted the contents of the two responsive public emails in its response to CPLL’s request, rather than providing a copy of the public data to the requester. As discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-411892" target="_blank">Advisory Opinion 19-013</a>, “where the data are public, the requester is entitled to access in the format and program in which it is maintained.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Aitkin County Sheriff’s Office’s did not respond appropriately to CPLL’s request for all data reflecting correspondence or meetings between the Aitkin County Sheriff’s Office and a specified individual, as the Sheriff’s Office’s response was ambiguous and did not properly indicate whether responsive data existed.</li> <li>The Aitkin County Sheriff’s Office did not respond appropriately to a request for a “short description explaining the necessity for the classification” after withholding responsive data as “security information” pursuant to Minn. Stat. § 13.37.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 21, 2021</p>5035832664542022-01-25T02:23:59Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-486128" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-06-21T16:05:46ZA school district asked the Commissioner about the classification of data that the district maintained about teachers who attended a professional development program offered by the District. The Commissioner concluded that the data that identified the teachers that attended the program constituted “work-related continuing education” within the meaning of Minnesota Statutes, section 13.43, subdivision 2(a)(7), and were therefore public.June 21, 2021; ISD 186, Pequot Lakes Public Schools36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.      <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Maggie Wallner, legal counsel for Independent School District 186 – Pequot Lakes Public Schools – (District), requested an advisory opinion about the classification of certain government data the District maintains, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The School District offered a professional development opportunity to staff through the SEED Project (“SEED”), a national organization that works with schools to promote equity and social justice. (See nationalseedproject.org). Participation in the course was voluntary and entailed one evening session per month for nine months. Participating teachers earned up to three graduate credits to be applied to their lane on the salary schedule, or alternately could opt to receive payment of up to $1500 for completion of the program. Participating teachers could also choose to apply for continuing education units (“CEUs”).</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The School District has received a data request from a parent requesting a list of staff that have participated in SEED, with an expressed intent to request a teacher for next year that has not participated in the program. The School District maintains data that would be responsive to this request. </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, maintained by Independent School District 186 – Pequot Lakes Public Schools – about District employees who participated in a professional development course offered by the District?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">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.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivisions 2 and 3 list the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. One of the public elements listed in subdivision 2 is, “work-related continuing education.” (See, section 13.43. subd. 2(a)(7).)</p> <p xmlns="http://www.w3.org/1999/xhtml">After proposing and refuting the argument that the data at issue could be “education and training background,” pursuant to section 13.43, subd. 2(a)(2), the District wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The other potentially applicable exception is “work-related continuing education.” Minn. Stat. § 13.43, subd. 2(7). This phrase is not defined and there do not appear to be any cases or Advisory Opinions interpreting it. Although the staff were able to receive CEU credit for their participation in SEED, the program was not required as part of their work. Moreover, it is unclear whether this exception requires specific course titles to be public data, as opposed to total number of credits or general topics.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On balance, the School District concludes that this data would most likely fit within the “work-related continuing education” exception and be classified as public data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the District. Though “work-related continuing education” is not defined by the Data Practices Act, a plain language interpretation would include data about the program at issue here. The District offered the SEED Project to District employees as an educational program related to their job duties in the District. The District characterized the SEED Project as “a professional development opportunity,” offered to pay teachers to attend, and provided other benefits like continuing education credits and graduate credits for salary schedule lane changes. Therefore, data that the District maintains that identify the teacher(s) who participated in the SEED Project are public work-related continuing education data, pursuant to section 13.43, subd. 2(a)(7).</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Data maintained by Independent School District 186 – Pequot Lakes Public Schools – that identify District employees who participated in a professional development course offered by the District are public work-related continuing education data, pursuant to Minnesota Statutes, section 13.43, subd. 1(a)(7).</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis;  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 21, 2021</p>4861282022-02-03T15:03:42Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-481436" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-05-07T21:05:41ZA member of the public asked for recordings of a township board of supervisors meetings closed for labor negotiations pursuant to Minnesota Statutes, section 13D.03. The Board argued that members voted to post the recordings to the Township website and to make them available upon request, but it was unclear from the facts whether the Board actually made the recordings available. The Commissioner opined that the Board members did not comply if they did not make the recordings “available” to the public after it had signed all of the contracts for the current budget period. May 7, 2021; Windemere Town Board of Supervisors36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.     <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Vern C. Anderson asked for an advisory opinion regarding the Windemere Town Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.</p> <p xmlns="http://www.w3.org/1999/xhtml">Anderson provided a summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On February 13, 2020[,] township supervisors signed a contract with I.U.O.E.-Local 49….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In 2019, the Windemere township supervisors held several special/closed meetings. I submit below a list of three of the special/closed meetings and the circumstances of each. These special/closed meetings require prior public notice, as well as a statement at a prior open public meeting as to the purpose for the special/closed meeting, a recorded vote at a prior open meeting, and audio recordings of the subsequent special/closed meetings. The violation of Minnesota Statues 13D.03 comes to light when the supervisors refuse to make the audio recordings available to the public after the subject union contract has been signed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On January 29, 2021, I made a formal request for the required audio recordings of three special/closed meetings…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As of this date, March 19, 2021, the township clerk and chairman have not responded to my January 29, 2021, request to make the audio recordings of the above listed special/closed meeting available.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Have the Windemere Town Board members complied with the requirement to make recordings of meetings closed for labor negotiations in 2019 and 2020 available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2(b)?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. One exception is for meetings to consider strategy for labor negotiations. (Minnesota Statutes, section 13D.03.) The public body must record these closed meetings and the recordings “shall be preserved for two years after the contract is signed and shall be made available to the public after all labor contracts are signed by the governing body for the current budget period.” (Section 13D.03, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Minn. Stat.§ 13D.03, subd. 2(a) requires governmental bodies to tape-record the proceedings of a meeting closed to discuss labor negotiations, and subpart (b) requires that such recordings be made available to the public after the subject contract is signed. The Town is aware of five special meetings at which labor negotiations were discussed in closed session during 2019-2020. Those meetings were held on May 16, 2019, July 9, 2019, August 1, 2019, September 5, 2019, and January 2, 2020. The Town is in possession of tape-recordings of the August 1, 2019, September 5, 2019, and January 2, 2020, closed sessions. At its regular meeting in January 2020, the Town Board approved a motion to post these recordings to the Town's website. Though this was delayed, in part due to a newly elected, inexperienced Town Clerk, the recordings have been posted on the Town's website. The recordings are also accessible by the public by contacting the Town Clerk, who is in possession of the recordings and can set an appointment at which a member of the public can come to the Town Hall and listen to the recordings.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Based on the foregoing, it is clear the Town Board has complied with Minn. Stat.§ 13D.03, subd. 2(b) by voting in January 2020 to post all tape-recordings of closed meetings wherein labor negotiations were discussed on its website and subsequently posting said recordings to the public website. The Town Board cannot post tape-recordings it does not have.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the record, it is unclear when the Board posted the recordings to its website. The Board signed the contract related to the closed meetings at issue in February of 2020. The Board stated that it voted at the January 2020 regular meeting to make the recordings available by posting them to its website and upon request to the town clerk. (The Commissioner notes that voting to make the recordings available does not satisfy the requirement to make the recordings available.) The Board further stated that access to the recordings through the website was delayed due to a change in personnel. A new town clerk started in January of 2021 – 11 months after the Board and the union signed the contract. Presumably, the recordings were not available on the website until after the new clerk started and posted them. Until the recordings were made available on the website, availability would have been by request only.</p> <p xmlns="http://www.w3.org/1999/xhtml">Anderson made his request for the recordings on January 29, 2021. He did not receive a response from the chair or the clerk. If Anderson made the request during the time when the recordings were not available on the website, the Board did not comply with the OML because it did not make the recordings available to the public. If the Board posted the recordings on the website prior to Anderson’s request, then the Board complied with the obligation to make the recordings available. (Anderson asked for access to the recordings for several meetings, one of which was November 13, 2019. However, that meeting seems to have been open to the public. The OML does not require public bodies to record public meetings.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that the OML does not mandate how public bodies make recordings “available” to the public. Public bodies may decide how best to implement the requirement once the condition of section 13D.03, subd. 2 is met (i.e., all contracts are signed for the current budget period). Posting the recordings on a website or providing access upon request certainly satisfies the requirement.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board also indicated that it failed to record two meetings closed for labor negotiations in 2019 and 2020. Though those two meetings were not a part of Anderson’s request, the Commissioner reminds the Board that the OML requires public bodies to record closed meetings. The Town also has obligations under the Official Records Act, Minnesota Statutes, section 15.17 and the Records Management Statute, Minnesota Statutes, section 138.17, to create and maintain records that document its official business. Further, by failing to record these two meetings, the Board did not meet the requirements in Section 13D.03 to maintain the recordings for a minimum of two years and make them available to the public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner reiterates that non-metro townships’ obligations under the OML are critical because they are not “government entities” subject to the requirements of the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13). The OML is one of the few mechanisms available to the public to obtain records from non-metro town governments. The Commissioner encourages all public bodies to provide meaningful access to information as mandated by the OML.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Windemere Town Board of Supervisors did not post the recordings of meetings closed for labor negotiations to its website, provide access on request, or otherwise make them available, it did not comply with Minnesota Statutes, section 13D.03, subd. 2(b).</p> <p xmlns="http://www.w3.org/1999/xhtml">If the Windemere Town Board of Supervisors posted the recordings to their website at the time of the request for recordings, it complied with Minnesota Statutes, section 13D.03, subd. 2(b) because the requested recordings were “available to the public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis; <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">May 7, 2021</p>4814362663882662872663892666492663502663922667642022-05-02T18:55:07Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-476951" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-04-19T18:54:27ZA member of the public asked whether the conduct of a School Board violated the Open Meeting Law when a quorum of the School Board attended a meeting in person, while members of the public were limited to remote attendance. The Commissioner determined that the School Board did not comply with the Open Meeting Law, specifically noting that there is currently not a mechanism in the Open Meeting Law to hold an in-person meeting while restricting public attendance to remote monitoring. April 19, 2021; ISD 2142, St. Louis County Schools36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.    <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Marshall Helmberger requested an advisory opinion from the Commissioner regarding the ISD 2142 – St. Louis County Schools – School Board (School Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Commissioner did not receive comments from the School Board in response to Mr. Helmberger’s opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Helmberger stated,  </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On March 24, 2020, the school district announced in its meeting notice: “Meeting closed to the public due to COVID-19 pandemic and declared state of emergency.” The meeting notice included no call-in information for the public.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the March 24, 2020 meeting, the school board approved a motion that meetings would be held virtually for the foreseeable future, specifically citing Minn. Stat. 13D.021 as the justification for this action. A portion of that motion reads: “In accordance with MN Statutes 13D.021, members of the public are not permitted to attend future meetings of the school board until further notice due to the current health pandemic.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In subsequent agendas continuing to the present, the school district’s meeting notices have listed call-in information and indicated that meetings remain closed to the public due to the pandemic and declared emergency.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">He further indicated that at meetings held on September 22, 2020, November 24, 2020, January 5, 2021, and January 26, 2021, “four members of the seven-member board were in attendance, along with the superintendent and the business manager.” And that, “based on the official minutes of the school district…the St. Louis County School Board held an in-person meeting, and has been holding such meetings routinely, without allowing the public physical access to those meetings.” </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Helmberger argued that, “the Legislature did not intend for Minn. Stat. 13D.021 to be used in such a manner…For the district to invoke its right to hold meetings electronically and then primarily meet in-person, while limiting access to the public to electronic means only, is a gross violation of both the letter and the intent of this provision.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the St. Louis County School Board comply with the OML requirements of Minnesota Statutes, section 13D.021 during meetings held on September 22, 2020, November 24, 2020, January 5, 2021, and January 26, 2021, when a quorum of the School Board attended the meetings in person while members of the public were limited to attending remotely?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a school district is a public body subject to the law. (Minnesota Statutes, section 13D.01, subdivision 1(b)(1).) </p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>‘Meetings’ subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</em> <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies...This includes meetings at which information is received which may influence later decisions of such bodies.” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 6 (Minn. 1983). And that the purposes behind the law “are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.” (Footnote omitted.) <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002).</p> <p xmlns="http://www.w3.org/1999/xhtml">Public bodies required to comply with the OML must still do so during a state of an emergency. Minnesota Statutes, section 13D.021, subdivision 1 permits public bodies to hold meetings via telephone or other electronic means if they meet the conditions of that section.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.021 requires a public body to determine that an in-person meeting is “not practical or prudent because of a health pandemic or an emergency declared under chapter 12.” Additional requirements for holding a meeting via telephone or other electronic means include: all participating members can hear one another; members of the public at the physical meeting location can hear all discussion “unless attendance at the regular meeting location is not feasible due to the health pandemic”; at least one member of the public body is present at the meeting location, “unless unfeasible due to the health pandemic”; and all votes are taken by roll call. (Section 13D.021, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.021, subdivision 3 further requires that “to the extent practical,” public bodies shall allow the public to monitor the meeting remotely.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Mr. Helmberger provided a copy of meeting minutes from the School Board’s March 24, 2020, meeting, which stated all members voted in favor of the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Due to the current federal and state emergency declarations and guidance about limiting person-to-person contact due to the COVID-19 (coronavirus) pandemic, all future meetings of the St. Louis County Schools ISD 2142 school board will be held at the District Office located at 1701 North 9th Avenue, Virginia, Minnesota and will be conducted in accordance with MN Statutes 13D.021 – Meetings by Telephone or Other Electronic Means until further notice.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Consistent with the federal and state guidance, the board chair has determined that an in-person meeting is not practical or prudent because of the current health pandemic.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Due to the health pandemic, it may not be feasible for at least one board member, the superintendent, or the school district’s legal counsel to be physically present at the regular meeting location. It is also not feasible for the public to attend at the regular meeting location due to the health pandemic.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In accordance with MN Statutes 13D.021, members of the public are not permitted to attend future meetings of the school board until further notice due to the current health pandemic. The public may monitor meetings from a remote location via Google Hangouts at meet.google.com/uwy-mdmm-hnv.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">However, Mr. Helmberger noted that despite the School Board’s March 24 determination, a quorum of the School Board members attended the September 22, 2020, November 24, 2020, January 5, 2021, and January 26, 2021, meetings in person while members of the public were limited to monitoring the meetings remotely. Mr. Helmberger provided copies of the minutes from each of these meetings, which documented the in-person or virtual attendance of each School Board member.</p> <p xmlns="http://www.w3.org/1999/xhtml">He argued that the School Board “is citing the current health emergency as rationale to invoke Minn. Stat. 13D.021, under which the school district is allowed to hold meetings by telephone or other electronic means because it has determined that ‘in-person meetings’ are not ‘practical or prudent.” And that, “[b]ased on the plain meaning of this statute, an ‘in-person’ meeting…would be a physical meeting of a quorum of a governing body, which would normally be open to physical access by the public under the OML.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with Mr. Helmberger. As discussed above, <em>Moberg</em> indicates that a meeting consists of a gathering of a quorum of a public body. In order for public bodies to hold a meeting via telephone or other electronic means under Section 13D.021, it must first determine that “an in-person meeting … is not practical or prudent because of a health pandemic or an emergency declared under chapter 12.” In other words, Section 13D.021, subdivision 1 requires public bodies to determine that it is not practical or prudent for “a quorum or more members of the governing body” to hold an in-person gathering, “at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d at 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">When a quorum of the members gathered in person to discuss, decide, or receive information as a group relating to official business, the School Board contradicted its prior determination that in-person meetings are not practical or prudent. As a result, the School Board did not meet the first requirement to hold meetings via telephone or other electronic means under Section 13D.021.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that there is currently not a mechanism in the OML for public body members to hold in-person meetings while limiting public attendance to electronic monitoring. Section 13D.021 permits telephone or electronic meetings of public bodies during a health pandemic or Chapter 12 emergency, meaning that a quorum of a public body that intends to gather in order to discuss, decide, or receive information related to public business under this section must do so via telephone or other electronic means.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:0in; margin-left:.5in" xmlns="http://www.w3.org/1999/xhtml"> </p> <p xmlns="http://www.w3.org/1999/xhtml">The School Board did not comply with the OML when a quorum of the public body held in-person meetings on September 22, 2020, November 24, 2020, January 5, 2021, and January 26, 2021, while the public was limited to remote attendance.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">April 19, 2021</p>4769513625072666412663882663922667644769544769534769522022-01-18T19:11:57Z266258266282266520266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-462988" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-01-13T20:16:53ZA member of the public made a data request to a school district. She requested a copy of the recording of a school district open meeting. The school district denied access to the recording, indicating the recording contained discussions of allegations against school district personnel. The Commissioner could not determine whether the school district properly responded to the public data request because there was a factual dispute as to the purpose for the school district’s maintenance of the recording, and whether the school district maintained more than one copy of the recording for separate purposes.January 13, 2021; ISD 197, West St. Paul-Mendota Heights-Eagan Area Schools36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.   <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Krista Porvaznik requested an advisory opinion from the Commissioner regarding Independent School District 197’s (District) – West St. Paul-Mendota Heights-Eagan Area Schools – response to a request for data pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13). Michael J. Waldspurger, counsel, responded on behalf of the District.</p> <p xmlns="http://www.w3.org/1999/xhtml">On July 24, 2020, Ms. Porvaznik submitted a data request to the District, which included a request for “the recording of the Public Comments portion of the June 15th School Board Meeting.” After communications between the parties, the District responded to the request by stating that during the public comment session, “some community members began making allegations against district employees” and that “[t]o the extent that the recording of the meeting consists of allegations against any district employee, the recording is classified as private personnel data under Minnesota Statutes section 13.43 and may not be released to the public.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Independent School District 197, West St. Paul-Mendota Heights-Eagan Area Schools, properly respond to a request for a copy of the public comments portion of the June 15, 2020, ISD 197 School Board Meeting recording?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">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 various types of personnel data classified as public and subdivision 4 provides that all other personnel data are private, and therefore not accessible to members of the public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the Open Meeting Law (OML) requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a school district is a public body subject to the law. (Minnesota Statutes, 13D.01, subdivision 1(b)(1).) Minnesota Statutes, section 13D.05, subdivision 1(c) states, “data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public.” The OML does not require public bodies to record meetings that are open to the public. Public bodies may determine what record(s) of a meeting they will create, and further, what they will consider the official record of the meeting that they must continue to maintain. (See Minnesota Statutes, section 15.17.)</p> <p xmlns="http://www.w3.org/1999/xhtml">There are two Minnesota Supreme Court cases that discuss how the purpose for maintaining data and the location where data are maintained impact the classification of the data.</p> <p xmlns="http://www.w3.org/1999/xhtml">In <em>KSTP TV</em>, the Minnesota Supreme Court discussed the classification of video recordings from Metro Transit buses, and whether the recordings were classified as personnel data. The recordings were originally maintained on the bus hard drives for multiple purposes, including safety-related reasons. However, after an incident, Metro Transit downloaded the recordings from the hard drives onto DVDs to evaluate bus driver conduct. The classification of the video ultimately depended upon whether the recordings was “‘maintained’ by Metro Transit exclusively for a personnel purpose at the time KSTP made its request to access the data.” (<em>KSTP TV v. Metropolitan Council</em>, 884 NW 2d 342, 350 (Minn. 2016).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <em>Harlow</em>, the Minnesota Supreme Court analyzed a situation where a single government entity maintained duplicate data in separate locations for separate purposes. (See <em>Harlow v. State Dept. of Human Services</em>, 883 N.W.2d 561 (Minn. 2016).) In its opinion, the 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 <em>Harlow</em> at 568.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court did not address the interaction of Section 13.43 and the OML. However, the Court’s conclusion in <em>Harlow</em> demonstrates how data may be classified as public for one purpose and not public for another when the data are maintained in two separate locations.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the District states, “[t]he video recording of the public comment session contains general allegations against three high school administrators. To the extent that the recording of the meeting contains allegations against any identifiable employee, including a small group of employees, the recording is classified as private personnel data.” The Commissioner disagrees. The classification of the recording depends on the purpose for maintaining the recording, and whether the recording is maintained in more than one location.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, although unclear, it appears that the District only maintains one copy of the meeting recording, if that is so, the <em>KSTP TV</em> case is most applicable. The data Ms. Porvaznik requested is a recording of the public comments portion of an open meeting held by the school board. The plain language of the OML is clear, a record of an open meeting, regardless of form, is public. The OML only requires the District to record closed meetings. If the District chooses to record its open meetings and continues to maintain these meeting recordings for this original purpose (as a recording of an open meeting), the recordings of the open meetings are public. As a result, if the District continued to maintain the recording as a record of the open meeting at the time of Ms. Porvaznik’s data request, rather than exclusively for personnel purposes, the recording was still being maintained as a record of the meeting and would be public pursuant to 13D.05, subdivision 1(c).</p> <p xmlns="http://www.w3.org/1999/xhtml">However, if the District placed the recording in an employee’s “personnel file” or maintained the meeting recording exclusively for personnel purposes at the time of Ms. Porvaznik’s request, then the data maintained about that employee would be personnel data pursuant to Minnesota Statutes, section 13.43.</p> <p xmlns="http://www.w3.org/1999/xhtml">If the District maintains multiple copies of the meeting recording, <em>Harlow</em> provides additional guidance on the classification of data when maintained in two separate locations for different purposes. If the recording of the meeting exists both as a record of the meeting and in the personnel files or for personnel purposes of the employees discussed at the meeting, the copy of the recording that exists as a record of the meeting would be public pursuant to Minnesota Statutes, section 13D.05, subdivision 1(c).</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, the District asserts that “a record of the meeting” means meeting minutes. The Commissioner disagrees that a record of a meeting is limited to meeting minutes. If the Legislature had intended only meeting minutes to be public, the Legislature could have used the phrase “meeting minutes” instead of “a record of a meeting, regardless of form.” To the extent a public body maintains multiple records of a meeting, section 13D.05, subdivision 1(c), makes them public so long as the records of the meetings continue to be maintained for that purpose.</p> <p xmlns="http://www.w3.org/1999/xhtml">The comments provided do not definitively indicate why or how the District maintains the recording or whether there are multiple recordings. Therefore, the Commissioner cannot determine whether the District responded appropriately to Ms. Porvaznik’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner would like to note that Minnesota Statutes, section 13D.05, subdivision 1(c) only applies to open meetings, where the public will already have access to the discussions that take place at the open meeting. If a recording of a public meeting is not the public body’s official record, it is not required to continue to maintain the recording for that purpose. The classification of recordings of closed meetings are discussed in Advisory Opinion 10-001. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot determine whether the District properly responded to Ms. Porvaznik’s data request, as there are questions of fact the Commissioner is unable to resolve.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Lenora Madigan   <br /> Deputy Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 12, 2021</p>4629882666492663892663922663882662912022-01-18T19:11:57Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-461873" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2021-01-03T14:42:00ZA member of the public asked about the conduct of the West Lakeland Township Board of Supervisors under the Open Meeting Law, Minnesota Statutes, Chapter 13D. The member of the public raised four issues including the requirement to maintain a journal of votes, special meeting notice requirements, members’ materials, and discussions at special meetings. The Commissioner opined that the Board was not complying with the law because it did not keep a separate journal of the votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4. The Commissioner opined that the Board did not comply with the law when it changed the location of a meeting without providing the three day notice required by Minnesota Statutes, section 13D.04. The Commissioner could not determine whether the Board complied with the requirements to provide one copy of the members’ materials at a meeting because there was a factual dispute. Finally, the Commissioner could not determine whether the Board had a discussion outside of the noticed purpose of a special meeting because there was a factual dispute as to whether the item the Board discussed was related to the stated purpose.January 3, 2021; West Lakeland Town Board of Supervisors36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: In 2021, the Legislature amended Minnesota Statutes, section 13D.01, subd. 4, related to a journal of votes.</strong></p> <p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Vincent Anderson asked for an advisory opinion regarding the West Lakeland Town Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Viet-Hanh Winchell, attorney for the Board, provided comments.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Anderson asked about four instances of the Board members’ conduct related to the OML. A summary of the circumstances, as described by Mr. Anderson, are as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Journal of votes: “[e]nclosed is a copy of my request for the journal of votes and the town clerk's response that the journal of votes does not exist.”</li> <li>Special meeting notice: "At various times, the board has moved the meeting location without the required notice. This could be changing rooms at the school to finding the school closed and deciding to meet somewhere else. Under Minnesota Statute 13D.04 Subd. 2 paragraph (b), I have requested to be notified of all special meetings/ changed locations….The particular meeting I am questioning, providing evidence on and enclosing a copy of the minutes of is a June 10, 2019 meeting that was moved without timely notice."</li> <li>"The treasurer each month at the monthly meeting presents and discusses financial reports to the board and presents required checks together with the applicable invoices to be signed by the chairman. The chairman does sign them at the meeting in company of the other board members. At times, there is not a public copy of the financial report and there has never been a public copy of the individual disbursements. … There were no financial reports available to the public at the regular [meeting]… September 9, 2019. Copies of the invoices with approvals and checks to be signed were not available to the public."</li> <li>Special meeting purpose: “The particular meeting I am asking for an opinion on is that of September 2nd, 2020. Attached is a copy of the meeting notice and minutes of that meeting. You should note only 2 items were in the meeting notice. I have highlighted on the minutes additional topics that were discussed.”</li> </ol> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Are the West Lakeland Town Board members in compliance with the requirement in the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML), to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4?</li> <li>Did the West Lakeland Town Board members comply with the OML when it changed the location of the June 10, 2019, regular meeting?</li> <li>Did the West Lakeland Town Board members comply with the OML requirement to have at least one copy of members’ materials available to the public at the September 9, 2019, meeting of the Board, pursuant to Minnesota Statutes, section 13D.01, subdivision 6?</li> <li>Did the West Lakeland Town Board members comply with the OML when it held a special meeting on September 2, 2020, to discuss, “future virtual meetings and Lake Elmo Airport projects"?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Are the West Lakeland Town Board members in compliance with the requirement in the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML), to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) The votes of the members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal kept for that purpose.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(b) The vote of each member must be recorded on each appropriation of money, except for payments of judgments, claims, and amounts fixed by statute. (See, Minnesota Statutes, section 13D.01, subdivisions 4.)</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Mr. Anderson requested access to the journal of votes, the town clerk responded that the Board did not keep a journal of votes.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The journal of votes is a journal or booklet of the minutes. The Town Clerk specifically maintains separate binders that hold all meeting minutes from July 1950 to the present. The meeting minutes reflect all actions taken by the Town Board along with summaries of nonaction items for each meeting….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Mr. Anderson believes “journal of votes” to mean a separate book that keeps track of only action items and that tallies up the voting. Certainly, that type of documentation does not exist. Although the Town Clerk responded that a journal of votes did not exist, it was a mistaken belief that what Mr. Anderson was looking for was a separate book that keeps track of only action items and that tallies up the voting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As the Commissioner recently opined in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-416185" title="Advisory Opinion 20-001">20-001</a>, “[t]he Board’s comments focusing on meeting minutes here are misplaced. The Board has an obligation to maintain a journal of votes and to provide access to the journal of votes, during all normal business hours where the journal is kept.” </p> <p xmlns="http://www.w3.org/1999/xhtml">“Journal” is not defined by the OML. As such, the Commissioner turns to the common usage of the word. (See Minnesota Statutes, section 645.08). Considering the context of subdivision 4, Merriam-Webster defines “journal” as, “a record of current transactions”; “an account of day-to-day events”; “a record of transactions kept by a deliberative or legislative body”; “log.” In addition, section 13D.04, subdivisions 3 and 4 specifically refer to “minutes,” whereas section 13D.01, subd. 4, refers to a “journal of votes.” In distinguishing between a “journal of votes” and “minutes,” the Commissioner must conclude that the Legislature intended the “journal of votes” to differ from “minutes.” It is, therefore, the Commissioner’s opinion that section 13D.01, subd. 4(a) requires public bodies to maintain a journal votes that is separate and distinct from any meeting minutes they also produce. (See also, Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266653" title="Advisory Opinion 08-034">08-034</a>, Issue 3, concluding that posting on a website is not sufficient for access to the journal of votes.)</p> <p xmlns="http://www.w3.org/1999/xhtml">As a related issue, both the requester and Board raised the question of which votes need to be recorded in the journal.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Minnesota Statute § 13D.01, subdivision 4(a) is related to action items of the town board and has no specific requirement that each board member’s vote be recorded. Subdivision 4(b) is related to action items related to appropriation of money, which does have a specific requirement that each board member’s vote be recorded, in essence, a roll call vote. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Attorney General answered this question in an opinion from 1975, reaffirming a conclusion from a prior opinion: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In Op. Atty. Gen. 471-e, Sept. 18, 1962, it was held that this provision makes it mandatory that the individual vote of each council member on all types of matters be recorded.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>For the foregoing reasons, it is our opinion that the vote recording provisions of Minn. Stat. sec. 471.705 (1974) require that the individual votes of public officials on “any action” be recorded in a journay [sic] except for votes on “payments of judgments, claims and amounts fixed by statute.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Op. Atty. Gen. 125a-14, Feb. 28, 1975. The Commissioner agrees; the Board must include the votes of each member of the public body on any action, “except for payments of judgments, claims, and amounts fixed by statute.”</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did the West Lakeland Town Board members comply with the OML when it changed the location of the June 10, 2019, regular meeting?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.04, subd. 1, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A schedule of the regular meetings of a public body shall be kept on file at its primary offices. If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Public bodies must post notices for special meetings three days prior to the meeting. The notice must list the time, date, location, and purpose. The public body must also notify those individuals who have specifically asked for special meeting notice. (See section 13D.04, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Town wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he Town was locked out of its usual place for its regular Town Board meeting. The Town Board and staff took all necessary measures to handle the last minute change, which was merely 0.8 miles down the same road and even had the Deputy Clerk wait at the usual meeting place for nearly half an hour to direct anyone coming for the meeting to go to the church. The Town Board needed to address the public hearing or face other consequences related to the 60-day rule. The Town Board did not violate the OML and did what was reasonably necessary to address the lock out, which was not its fault, in order to conduct town business that needed to be addressed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that public bodies have multiple obligations to consider when holding meetings. Here, however, the OML does not contain an exception to the notice provisions based on the Board’s competing obligation under a public hearing provision. The Board had a regular meeting scheduled and changed the location. The OML requires meetings under those circumstances to be noticed as special meetings, which requires a three-day posting and notice to individuals who have specifically requested notice. </p> <p xmlns="http://www.w3.org/1999/xhtml">As a practical matter, if closures of the regular meeting location tend to occur with frequency, the Board may want to reconsider the location, as it seems to put Board members in the position of choosing either to  violate the OML or forgo scheduled meetings.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 3.</strong> Did the West Lakeland Town Board members comply with the OML requirement to have at least one copy of members’ materials available to the public at the September 9, 2019, meeting of the Board, pursuant to Minnesota Statutes, section 13D.01, subdivision 6?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.01, subd. 6, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) distributed at the meeting to all members of the governing body;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) distributed before the meeting to all members; or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) available in the meeting room to all members;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Anderson contends that the Board did not make available certain financial documents that the Board considered at its September 9, 2019, meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Town responded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the regular Town Board meeting, the Treasurer provides a financial report, receipts, a listing of disbursements, and checks. The Treasurer generally does not provide these in advance, rather she brings them to the meeting. The Treasurer always places one public copy of the financial report on the back table and also clearly marks it as “Public Copy, DO NOT REMOVE” or similar language.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On September 9, 2019, the Treasurer appeared late at the Town Board meeting because she first went to Baytown’s regular monthly board meeting. She is also the treasurer for Baytown Township. ….On September 9, 2019, upon her entry, she placed a copy of the financial report on the back table with the public copies and then proceeded to the front to provide the remaining copies to the Town Board for consideration. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Such document is not required to be provided in advance unless the Town Board had access in advance. At the time the Town Board had a copy of the financial report, so did the public.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot resolve factual issues. If the treasurer distributed the financial documents at the meeting and then, also made them available to the public, then the Board complied with the law. If the materials were not available, then the Board did not comply with the law.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Anderson also contends that the unsigned checks should be made available to the public at an open meeting. The Board responded that the checks are not subject to section 13D.01, subd. 6, because they are the result of an action and “not a meeting item.” If the checks are not distributed before or at the meeting to all members or available to all members in the meeting room, then the OML does not require a copy of the checks to be in the public members’ materials. The Commissioner further notes that while there may be nonpublic data on a check that must be redacted (e.g., Minnesota Statutes, section 13.37 classifies checking account numbers), there are likely public data on checks, as well.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 4.</strong> Did the West Lakeland Town Board members comply with the OML when it held a special meeting on September 2, 2020, to discuss, “future virtual meetings and Lake Elmo Airport projects”?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As noted in the requirements for Issue 2, special meeting notices require a purpose for the meeting and the public body must confine its discussion to that purpose. (See section 13D.04, subd. 2 and Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267582" title="Advisory Opinion 04-057">04-057</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267288" title="Advisory Opinion 07-024">07-024</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267304" title="Advisory Opinion 10-013">10-013</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-379354" title="Advisory Opinion 19-006">19-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board provided the following comments:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The purpose for this meeting, as clearly noted in the meeting notice, was to address: (1) future virtual meetings; and (2) update board on airport projects. It should be noted that Mr. Anderson was not in attendance at this meeting and is merely comparing the meeting notice to the meeting minutes, albeit, incorrectly.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Paragraph 3 discusses drainage issues and permit issues which is directly related to “Lake Elmo Airport project.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Paragraph 4 discusses potholes on 30th Street which is part of the “Lake Elmo Airport project.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Paragraph 5 discusses availability for the Joint Airport Zoning Board Meeting, which was created to address “Lake Elmo Airport project.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Anderson contends that the discussions of potholes on 30th street and the availability for the Joint Airport Zoning Board meeting are unrelated to the Lake Elmo Airport Project. The Board asserts that they are. There is a factual dispute here that the Commissioner cannot resolve. If discussion of those issues is included in the Lake Elmo Airport project, then the Board has met its obligations. If not, then the members discussed items outside the noticed purpose and did not comply with the law.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The West Lakeland Town Board members have not complied with the requirement in the OML to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4.</li> <li>The West Lakeland Town Board members did not comply with the OML when it changed the location of the June 10, 2019, regular meeting and did not notice the meeting as a special meeting.</li> <li>The Commissioner cannot determine whether the West Lakeland Town Board members complied with the OML requirement to provide access to the members materials at a September 9, 2019, meeting, pursuant to Minnesota Statutes, section 13D.01, subdivision 6, as there is a factual dispute.</li> <li>The Commissioner cannot determine whether the West Lakeland Town Board members complied with the OML when they held a special meeting on September 2, 2020, by confining discussion to the purpose in the meeting notice, as there is a factual dispute.</li> <li style="list-style: none"><br /></li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Lenora Madigan  <br /> Deputy Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 3, 2021</p>4618732663452670692662904618692663462671042022-04-27T22:27:12Z266258266314515651<custom:Link urlOnly="true" type="Component" destination="tcm:36-448717" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-09-29T15:00:00ZThe City of Savage requested an advisory opinion regarding the classification of email addresses it collected to notify the public of information to participate in a town hall event. The Commissioner opined that the plain language of Minnesota Statutes, section 13.356, paragraph (a) classified the email addresses as private data because the City collected the data for the purpose of notifying residents of how to attend the virtual town hall event. The Commissioner also noted that any other registration data the City collected from individuals not listed in section 13.356 would be presumptively public.September 29, 2020; City of Savage36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The City of Savage (City) requested an advisory opinion from the Commissioner regarding the classification of data the City maintains, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13).</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On July 22, 2020, the City hosted a virtual town hall event via ZOOM entitled Race &amp; Policing in Savage. The event arose out of the killing of Mr. George Floyd, and the City wished to have conversations with its residents regarding the City’s own policing policies and procedures. As part of its promotion of the event, the City circulated a flyer and advertised the event on its webpage and through social media. … The City requested that those interested in participating in the event rsvp for the same electronically and provide an email address. The City then sent those providing an email address with the ZOOM link to the event.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Following the event, the Savage Pacer submitted a data practices request seeking all communications involving City staff members or elected officials regarding the event. … The data collected by the City includes a list of the email addresses of those who rsvp’d for the event and to whom the ZOOM link was provided. The City has provided the Savage Pacer the requested information except a list of email addresses of those who rsvp’d for the event…</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <p>What is the classification of email addresses collected by the City of Savage to notify the public of information to participate in a town hall event?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless classified by statute, temporary classification, or federal law as not public. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.356, paragraph (a) provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The following data on an individual collected, maintained, or received by a government entity for notification purposes or as part of a subscription list for an entity's electronic periodic publications as requested by the individual are private data on individuals:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) telephone number;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) e-mail address; and</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) Internet user name, password, Internet protocol address, and any other similar data related to the individual's online account or access procedures.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The City wrote, “[i]n this instance, the City required the email address of those individuals who rsvp’d for the event so that the City could notify those wishing to participate by sending the ZOOM link. For that reason, we believe that the email addresses of individuals are private data.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the City. The plain language of the statute classifies the data elements listed in section 13.356 as private if the City received them for “notification purposes.” The City collected the email addresses so that it could inform residents of how to attend the town hall. Therefore, section 13.356 classifies the email addresses.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that if the City collected any other data from the individuals that are not listed in section 13.356, including name or US postal address, those data would be presumptively public.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml"><span style="font-size: 23px; font-weight: 600;">Opinion:</span></h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Email addresses collected by the City of Savage to notify the public of information to participate in a town hall event are private data pursuant to Minnesota Statutes, section 13.356.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Lenora Madigan <br /> Deputy Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">September 29, 2020</p>4487172667182022-04-22T15:23:27Z266258266768266263<custom:Link urlOnly="true" type="Component" destination="tcm:36-428247" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-04-14T17:00:00ZThe Minnesota Department of Education requested an advisory opinion regarding access to private and confidential data within the same government entity, as well as sharing of private data between school districts and counties. The Commissioner opined that private or confidential data may be shared with individuals in other programs or units within the same government entity when the individuals have a work assignment that reasonably requires access, and that private data may be shared or exchanged between government entities when authorized by statute or federal law. The Commissioner specifically addressed sharing provisions that MDE referred to in its advisory opinion request. April 14, 2020; Minnesota Department of Education36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Department of Education (MDE) requested an advisory opinion from the Commissioner regarding access to and sharing of private and/or confidential data on individuals pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13). </p> <p xmlns="http://www.w3.org/1999/xhtml">MDE wrote, </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[MDE] is the state agency charged with implementing state and federal education laws as well as with exercising general supervision over public education in the state. MDE is the state’s designated lead agency for purposes of the federal early intervention program for infants and toddlers with disabilities, see 34 C.F.R. Chapter 303. MDE recently received a federal Preschool Development Grant, and seeks to use that grant, in part, to improve communication among the various government entities serving Minnesota’s children and their families. One aspect of communication that MDE believes might be improved is clarifying the legal authority of government entities to share private and confidential data on children and their families for the purpose of coordinating and providing additional services that may help the children.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>When may an employee in one unit of a government entity subject to the Minnesota Government Data Practices Act access private or confidential data on individuals collected by another unit or a different program within the same government entity?</li> <li>When may private data be shared or exchanged between a school district and a county without written consent of the individual subject of the data?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> When may an employee in one unit of a government entity subject to the Minnesota Government Data Practices Act access private or confidential data on individuals collected by another unit or a different program within the same government entity?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Data on individuals are “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.” (Minnesota Statutes, 13.02, subdivision 5.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Data on individuals can be classified as public, private, or confidential, depending on the content of the data. When data on individuals are classified as private or confidential, access to the data is limited. (Minnesota Statutes, 13.02, subdivisions 3 and 12.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Rules, part 1205.0400, subpart 2, outlines access to private data and specifically identifies those within a government entity that may access private data on individuals. Private data may be disclosed to individuals within a government entity whose work assignments reasonably require access to the data. Subpart 3 of this rule further states that the responsible authority of each government entity shall establish written procedures to assure that access is gained only by those parties identified in subpart 2. </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Rules, part 1205.0600, subpart 2, similarly states that confidential data may be accessed by those within the government entity whose work assignments reasonably require access. </p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, individuals within the same government entity may access private and confidential data when their work assignments reasonably require access, even when those individuals work within different units or programs of the same entity.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> When may private data be shared or exchanged between a school district and a county without written consent of the individual subject of the data?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Rules, part 1205.0400, subpart 2, private data may be shared with other government entities that are authorized by statute or federal law to access the data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Federal law is defined as “United States Code, rules and regulations of federal agencies as published in the Code of Federal Regulations, and federal case law, including decisions of any court in the federal judicial system.” (See Minnesota Rules, part 1205.0200, subpart 7.)</p> <p xmlns="http://www.w3.org/1999/xhtml">MDE identified numerous provisions that authorize school districts and counties to share or exchange private data without written consent of the data subject.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that the following provisions identified by MDE provide statutory authority to share data between a school district and a county when the circumstances of each provision are met. The Commissioner notes that this is not an exhaustive list of potential sharing provisions available to school districts and counties, and entities that would like to rely on these sharing provisions should review the statutes for a full understanding of the legal authority.</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Federal Education Rights and Privacy Act (FERPA) – The Commissioner notes that FERPA is also incorporated in Minnesota Statutes, section 13.32.</li> <li>Uninterrupted Scholars Act (an amendment to FERPA), specifically 20 U.S.C. 1232g(b)(1)(L), which permits the release of education records to certain welfare agency representatives or tribal organizations when the agency or organization is “legally responsible for the care and protection of the student.”</li> <li>Minnesota Statutes, section 13.32, subdivision 3, identifies specific instances when disclosure of private education data is permitted, including pursuant to a valid court order, certain health and safety emergencies, and to the juvenile justice system when necessary to protect health and safety. Section 13.32, subdivision 12 also provides for certain access to education data by personnel in a county’s welfare system.</li> <li>Minnesota Statutes, section 260C.208, subdivision 1, which authorizes agencies with “legal responsibility for the placement of a child” to request and receive information pertaining to the child that is necessary to carry out its duties, including education, medical, psychological, psychiatric, social, and family history data.</li> <li>Minnesota Statutes, section 13.46, subdivision 2 identifies when private data on individuals within the “welfare system” as defined by Minnesota Statutes, section 13.46, subdivision 1(c), may be shared, and subdivision 2(a)(32) specifically authorizes sharing of names, dates of birth, gender, and addresses to the chief administrative officer of a school to coordinate services for students and their families.</li> <li>Minnesota Statutes, section 119B.08, subdivision 3(1), which outlines what information biennial child care fund plans submitted to the Commissioner of Education by counties and “designated administering agencies” for the administration of child care assistance must include. Subdivision 1 of this statute indicates that the Commissioner of Education must specify the requirements for the reports pursuant to the authority provided in Minnesota Statutes, section 256.01, subdivision 2(p). Child care assistance program payment data are classified as private data pursuant to Minnesota Statutes, section 119B.02, subdivision 6. </li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">MDE also cited Minnesota Rules, part 9560.0560, subpart 2 as a potential sharing provision. However, pursuant to the administrative rules, sharing authority must be in state statute or federal law. Minnesota Rules are not considered statutes or federal law, and as a result do not provide sufficient authority to share or exchange data between government entities.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner reminds government entities of their obligation to provide Tennessen Warning notices to individuals when they collect private or confidential data from an individual, about that individual. The notice must include, (a) the purpose and intended use of the data; (b) whether the individual can refuse or is legally required to provide the requested data; (c) what the consequences are of supplying or not supplying the data; and (d) the identity of other persons or entities outside of the collecting agency authorized by state or federal law to receive the data. (See Minnesota Statutes, section 13.04, subdivision 2.)</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml"><span style="font-size: 23px; font-weight: 600;">Opinion:</span></h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Private or confidential data may be shared with individuals in other programs or units within the same government entity, when the individuals have a work assignment that reasonably requires access.</li> <li>Private data may be shared or exchanged between government entities when authorized by statute or federal law.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Lenora Madigan <br /> Deputy Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">April 14, 2020</p>4282472667122665332667332663162022-01-18T19:13:18Z266258266301<custom:Link urlOnly="true" type="Component" destination="tcm:36-422167" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-03-05T21:29:56ZA City asked about whether it was the agency with “primary investigative responsibility” pursuant to Minnesota Statutes, section 13.82, subdivision 7, when the Bureau of Criminal Apprehension (BCA) investigates an officer-involved shooting on its behalf. The City also asked about the classification of body camera data while the BCA investigates the officers’ conduct. The Commissioner agreed that the City’s position that the BCA was acting as the City’s agent was reasonable and therefore, the City retained the primary investigative responsibility. Additionally, based on the plain language of Minnesota Statutes, section 13.825, subdivision 2(a)(3), body camera data that are part of an active criminal investigation are classified by section 13.82, subd. 7, as confidential and protected nonpublic while the investigation is active. Once the investigation is inactive, the body camera video data are classified by section 13.825. March 5, 2020; City of Minneapolis36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: In 2024, the legislature enacted Minnesota Statutes section 626.5534 subdivision 3, which provides that the BCA Use of Force Investigations Unit has primary investigative responsibility for officer-involved deaths.</strong></p> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The City of Minneapolis (City) requested an advisory opinion from the Commissioner regarding the administration and classification of data pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13). The Commissioner invited the Minnesota Department of Public Safety (DPS) on behalf of the Bureau of Criminal Apprehension (BCA) to submit comments. DPS did not submit comments. </p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>An officer-involved shooting occurred in the City of Minneapolis on December 15, 2019. The Minneapolis Police Department (MPD) responded to a report of a domestic with weapons. The incident resulted in shots fired by MPD officers and the ultimate death of the suspect. Body worn cameras were activated during this incident.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The MPD responds to calls for service within the City of Minneapolis and conducts criminal investigations as appropriate. Given the death of the suspect in the December 15, 2019 incident, the MPD is not actively investigating the underlying alleged offense. However, the MPD also investigates officer-involved shootings to determine, among other things, whether involved officers acted in violation of the criminal code or MPD policy. To avoid the appearance of a conflict of interest, it has been the recent practice of the MPD to request that the Bureau of Criminal Apprehension (BCA) conduct criminal investigations of MPD officer-involved shootings. The MPD does not have a written agreement with the BCA regarding such investigations. The BCA is not statutorily required to investigate MPD officer-involved shootings.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Upon the request of the MPD, the BCA has agreed to investigate the December 15, 2019 officer-involved shooting. The MPD provided copies of the body worn camera videos and other criminal investigative data related to the incident to the BCA for review as part of the investigation. The MPD also maintains access to the body worn camera data and other criminal investigative data.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Which entity has “primary investigative responsibility” pursuant to Minnesota Statutes, section 13.82, subdivision 7, when the Bureau of Criminal Apprehension investigates an incident on behalf of the Minneapolis Police Department?</li> <li>What is the classification of certain law enforcement data, including body camera video, during an active investigation into an officer-involved shooting?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Which entity has “primary investigative responsibility” pursuant to Minnesota Statutes, section 13.82, subdivision 7, when the Bureau of Criminal Apprehension investigates an incident on behalf of the Minneapolis Police Department?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.82, subdivision 7, classifies active criminal investigative data collected or created to prepare a case against a person for a crime or offense, “for which the agency has primary investigative responsibility,” as confidential or protected nonpublic.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the City received a data request for law enforcement data and body camera video, which asserted: “Please be aware that this data is not subject to the restrictions outlined in MN Stat. 13.82, subd. 7, because the Minneapolis Police Department is not the agency with ‘primary investigative responsibility.’”</p> <p xmlns="http://www.w3.org/1999/xhtml">The City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he MPD has primary responsibility to respond to and investigate incidents relating to calls for service within the City of Minneapolis. The events resulting in the December 15, 2019 officer-involved shooting arose from such a call. The City retains primary investigative responsibility for investigating the underlying alleged offense as well as for investigating the MPD officers’ actions. The BCA is merely acting as an agent of the City while conducting its investigation into the December 15, 2019 incident.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that the City’s position is reasonable. The City continues to have the primary investigative responsibility because the BCA is acting as the City’s agent in investigating an incident within the City’s jurisdiction.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> What is the classification of certain law enforcement data, including body camera video, during an active investigation into an officer-involved shooting?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.825 classifies “portable recording system data" – audio or video data collected by a portable recording system worn by a peace officer (commonly referred to as body camera data) – as private or nonpublic, with exceptions. Subdivision 2 provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Data collected by a portable recording system are private data on individuals or nonpublic data, subject to the following:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) data that document the discharge of a firearm by a peace officer in the course of duty, if a notice is required under section 626.553, subdivision 2, or the use of force by a peace officer that results in substantial bodily harm, as defined in section 609.02, subdivision 7a, are public;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>3) portable recording system data that are active criminal investigative data are governed by section 13.82, subdivision 7, and portable recording system data that are inactive criminal investigative data are governed by this section.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Active criminal investigative data are classified as confidential or protected nonpublic. (See Minnesota Statutes, section 13.82, subdivision 7.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The City argues that the active criminal investigative data associated with the incident, including the body camera data, are confidential or protected nonpublic (excluding the “super public data” – arrest data, request for service data, and response or incident data – classified by section 13.82, subds. 2, 3, and 6). </p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the plain language of section 13.825, subd. 2(a)(3), body camera data that are part of an active criminal investigation are not classified by section 13.825. Instead, active investigative body camera data are classified by section 13.82, subd. 7. Once the investigation becomes inactive (see section 13.82, subd. 7(a)-(c)), inactive body camera data are classified as provided in section 13.825. </p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the body camera data are part of an active investigation into the actions of the officers responding to a call for assistance. Therefore, the body camera data and other law active investigative data are classified as confidential or protected nonpublic until the investigation is inactive.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that the City also argued that section 13.03, subdivision 4, the “travelling data” provision, applies to the circumstances here. However, because the BCA is acting as an agent of the City, the data did not travel to a different entity. Instead, the BCA is brought “within” the City for purposes of the investigation and sharing data.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml"><span style="font-size: 23px; font-weight: 600;">Opinion:</span></h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Minneapolis Police Department has the “primary investigative responsibility,” pursuant to Minnesota Statutes, section 13.82, subdivision 7, when the Bureau of Criminal Apprehension investigates an incident on the City’s behalf.</li> <li>Except for the data listed in Minnesota Statutes, section 13.82, subdivisions 2, 3, and 6, when there is an active criminal investigation into an officer-involved shooting, law enforcement data, including body camera data documenting the incident, are confidential or protected nonpublic.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 5, 2020</p>4221673785812664912664612663083785802024-07-02T15:09:10Z266258266272266297266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-421826" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-03-03T21:39:21ZA member of the public made a data request to a school district. He requested an email attachment that contained a district employee’s “contact list.” The school district denied access to the contact list, asserting contact lists are private personnel data. The Commissioner opined that the contact list may contain public data and/or not public data depending on the contacts listed. The fact that an individual maintains a list of contacts does not, by itself, make the contacts about that individual. March 3, 2020; ISD 181, Brainerd Public Schools36This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below. <br xmlns="http://www.w3.org/1999/xhtml" /> <br xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Jeff Czeczok requested an advisory opinion from the Commissioner regarding the Independent School District 181’s – Brainerd Public Schools – response to a request for data pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Chapter 13). The Commissioner did not receive comments from the school district in response to Mr. Czeczok’s opinion request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to a May 5, 2019, data request, Mr. Czeczok inspected data on July 15, 2019. One of the items he inspected was an email from a school district employee to another school district employee, dated September 21, 2017, which was entitled “Contacts.” This email contained an attachment entitled “google.csv.” The attachment to this email was not provided to Mr. Czeczok during inspection.</p> <p xmlns="http://www.w3.org/1999/xhtml">Following his inspection of responsive data, Mr. Czeczok submitted additional data requests to the school district for the email attachment, including requests dated July 25, 2019 and August 8, 2019. The school district provided multiple responses to Mr. Czeczok’s requests. In its September 11, 2019, response, the school district stated that the requested email attachment contained an employee’s email contact list and indicated the contact list was private personnel data. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Independent School District 181, Brainerd Public Schools, properly respond to a request for government data maintained in an email attachment?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minnesota Statutes, section 13.02, subdivision 7). Government data are public unless classified by statute, temporary classification, or federal law. (Minnesota Statutes, section 13.03, subdivision 1).</p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable amount of time. (Minnesota Statutes, section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300). If the government entity denies access to data due to its not public classification, the entity must cite the specific authority that classifies the data as not public. (Minnesota Statutes, section 13.03, subdivision 3(f)). </p> <p xmlns="http://www.w3.org/1999/xhtml">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 various types of personnel data classified as public and subdivision 4 provides that all other personnel data are private, and therefore not accessible to members of the public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the school district responded to Mr. Czeczok’s requests for the email attachment within a reasonable amount of time. In its response, the school district indicated the attachment contained an employee’s contact list, asserting that such a list is classified as private personnel data. The school district relied on <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267577" target="_blank">Advisory Opinion 02-003</a> in its assertion, arguing that employee contact lists are akin to employee calendars, which may contain private data about government employees, and as a result, employee contact lists would be classified as private as well. </p> <p xmlns="http://www.w3.org/1999/xhtml">However, in Advisory Opinion 02-003, the Commissioner indicated that the employee calendar at issue also contained certain data that documented public business of the government entity, such as telephone register information. This opinion clarified that “Chapter 13 classifies data, not files or records.” The Commissioner stated, “the [government entity] must provide public data contained in the calendar/register, i.e., data that document public business, even if those data are commingled with not pubic data.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner reiterates that Chapter 13 classifies data, rather than entire records or documents. The school district stated that the email attachment requested by Mr. Czeczok contains a school district employee’s “contacts from his [d]istrict email.” A list of contacts may contain public data and/or not public data, depending on the contacts within the list. If contacts are maintained in order to conduct public business, or the contacts are maintained in order for the government employee to perform his or her job duties, these contacts are likely not about the employee. Rather, these contacts would be about the business the employee is conducting. As a result, such contacts would not be appropriately classified as private personnel data. The fact that an individual maintains a list of contacts does not, by itself, make the contacts about that individual. However, if certain contacts within the list would reveal private data about the employee, such as an employee’s personal contact information, family member/dependent contact information, or other personal contacts unrelated to the public business conducted by the employee, those contacts may be redacted as private personnel data or potentially “personal” data (i.e., data that are not government data - see <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267561" target="_blank">Advisory Opinion 01-075</a>).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has not reviewed a copy of the email attachment at issue in this opinion, and as a result, she is unable to determine whether the contacts are about the government employee, or whether the contacts document public business. If contacts within the email attachment document public business and do not reveal private data or personal data about the school district employee, they are not data about the employee, and thus cannot be classified as private personnel data. The Commissioner also notes that government entities must separate public and not public data at no cost to the requester per section 13.03, subdivision 3(c).</p> <div xmlns="http://www.w3.org/1999/xhtml"> <hr /></div> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">If the email attachment maintained by Independent School District 181 contains public data, it must provide the requester access to those data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis   <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 3, 2020</p>4218262669042664082671472667262666052022-02-03T15:05:08Z266258266282266392266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-420746" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-02-20T23:14:06ZA board of directors of a nonprofit broadband corporation made up of government entities asked whether it was subject to the Open Meeting Law. The Commissioner opined that the board was not subject to the OML, but rather subject to the requirements in Minnesota Statutes, Chapter 317A, which allow boards of directors of nonprofits to change some of the statutory requirements for holding meetings by changing articles or bylaws.February 20, 2020; Southwest Minnesota Broadband Services36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Travis Thies, General Manager of the Southwest Minnesota Broadband Services (SMBS) asked the Commissioner about the Board of Directors’ obligations under the Open Meeting Law, Minnesota Statutes, Chapter 13D. </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Thies wrote: “SMBS seeks to confirm that Minnesota’s Open Meeting Law contained in Minnesota Statutes Chapter 13D (the “OML”) is not applicable to SMBS to ease the concern of its municipal members and obtain certainty.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Is the Southwest Minnesota Broadband Services Board of Directors subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Most public bodies are subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 1, states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>All meetings, including executive session, must be open to the public</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(b) of the governing body of a</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) school district however organized,</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(2) unorganized territory,</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) county,</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(4) statutory or home rule charter city,</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(5) town, or</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(6) other public body.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court held that the board of directors of the Southern Minnesota Municipal Power Agency (SMMPA), which was formed by 18 member cities, was not subject to the Open Meeting Law. See, <em>Southern Minn. Mun. Power Agency v. Boyne</em>, 578 N.W.2d 362 (1998) (<em>SMMPA</em>).  The Court found that the plain language of the enabling legislation governing municipal power agencies allowed for SMMPA to run its affairs like a “private corporation.” Private corporations may manage their affairs by adopting bylaws that establish the manner of calling and holding meetings. (See <em>SMMPA</em> at 365.)</p> <p xmlns="http://www.w3.org/1999/xhtml">SMBS wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>SMBS was formed as a nonprofit corporation pursuant to Minn. Stat. § 317A. SMBS is comprised of seven municipal members who formed SMBS to develop and deploy broadband infrastructure to their respective communities. It operates in nine rural communities in Jackson, Nobles and Cottonwood counties. It competes with CenturyLink, Frontier and other wireless providers for customers and state grant funding. It operates as a business, handling competitively-sensitive information, forecasting revenue and costs, and developing strategic plans to build, maintain and strengthen its network to remain competitive in the industry in which it operates….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[SMBS’s] position is that the OML does not apply to SMBS due to our corporate entity and because disclosing sensitive and strategic information discussed in Board Meetings would diminish SMBS’ ability to compete with its competitors.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">SMBS is a nonprofit corporation subject to the requirements of Minnesota Statutes, Chapter 317A, which includes provisions related to board bylaws and meetings. </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 317A.181, subdivision 1, provides: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A corporation may, but need not, have bylaws. Bylaws may contain any provision relating to the management or regulation of the affairs of the corporation consistent with law or the articles, including but not limited to:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(8) the time, place, and manner of calling, conducting, and giving notice of member, board, and committee meetings, or of conducting mail ballots</em><em>.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">A nonprofit board of directors’ meetings are governed by Minnesota Statutes, section 317A.231, which includes requirements for board meetings but allows a board to alter those statutory requirements through its articles and bylaws. For example, meetings may be held in or out of the state. The board may meet by remote communication where board members are not required to be present at a particular location. The board may hold meetings by telephone. Board members may call meetings not in the articles or bylaws with five days’ notice to other members. Notice to other board members does not need to state a purpose. Additionally, board members may take action outside of a meeting. (See Minnesota Statutes, section 317A.239.) </p> <p xmlns="http://www.w3.org/1999/xhtml">These provisions are contrary to the requirements of the Open Meeting Law. (See <em>Quast v. Knutson</em>, 150 N.W.2d 199 (Minn. 1967) and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267613" target="_blank">Advisory Opinions 06-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266653" target="_blank">08-034</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-334889" target="_blank">18-003</a>, requiring meetings of public bodies to be held within the territorial confines of the public body;  Minnesota Statutes, sections 13D.02 and 13D.021, providing requirements for meetings conducted via interactive television or telephone, including requirements for members to be present in certain locations; and Minnesota Statutes, sections 13D.03 and 13D.04, requiring notice to the public in specific circumstances and within certain time limits.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Like the statutes governing municipal power agencies, Ch. 317A does not include any requirements for nonprofit boards of directors to hold public meetings and allows boards to follow or create requirements that are inconsistent with the provisions of the OML. </p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, it is the Commissioner’s opinion that as a board of a nonprofit subject to Ch. 317A, the SMBS Board of Directors is not subject to Chapter 13D, the OML.</p> <div xmlns="http://www.w3.org/1999/xhtml"> <hr /></div> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Southwest Minnesota Broadband Services Board of Directors is not subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">February 20, 2020</p>4207462663922022-01-18T19:13:16Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-416185" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2020-01-14T20:28:13ZA member of the public asked whether the Greenwood Township Board of Supervisors violated the Open Meeting Law when they denied access to the votes of its members based on a Board resolution. The Commissioner concluded that the Board violated the Open Meeting Law, because section 13D.01, subdivisions 4 and 5 require the Board to keep a journal of votes and have that journal available during normal business hours. January 14, 2020; Greenwood Township Board of Supervisors36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: In 2021, the Legislature amended Minnesota Statutes, section 13D.01, subds. 4 and 5, related to a journal of votes.</strong></p> <p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Jeff Maus asked for an advisory opinion regarding Greenwood Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Michael C. Couri, attorney, responded on behalf of the Board.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Maus provided the following summary of the issue:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On October 1, 2019, I requested to view “the record of the vote of each member on each appropriation of money recorded August and September 2019 Board meetings (sic).” </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Township denied my request, writing “per town board motion – Maus is to receive no information from the Township.”</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to the Open Meeting Law, Minnesota Statutes, Chapter 13D, did the Greenwood Township Board provide appropriate access to the votes of members, in response to an October 1, 2019, request?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Open Meeting Law requires public bodies to maintain a journal of votes and the journal must be “open to the public during all normal business hours where the records of the public body are kept.” (See Minnesota Statutes, section 13D.01, subdivisions 4 and 5.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the Board wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>After expressing his concerns about Mr. Maus' continued requests for information while [Mr. Maus’s] claim against the Township remained pending, Supervisor Ralston made a motion as follows: "So, just, I think the blanket answer can be no. And let him carry it further. As long as we 're talking about the emails and stuff. And I'll make that a motion." …. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The motion appears to have been limited to "emails and stuff”' that would not be provided to Maus. Recognizing the confusion that might exist, the following discussion ensued:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em> Treasurer Pam Rogers: “What about things like the minutes and this stuff, the public stuff?” </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Supervisor Ralston: “He can get it out of the public folder. Just like anybody else.” </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Treasurer Rogers: “OK, she's [referring to Sue Drobac, the Town Clerk] been making him a packet.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Supervisor Ralston: “I mean, I think that, you know, public folder, you can get it at a meeting.” </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Clerk Sue Drobac: “This is all public information.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Following this discussion, the Town Board approved the motion.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Given that the motion was limited to "emails and stuff”' which was further clarified prior to the vote on the motion to make clear that it did not apply to the minutes of the Town Board meetings where the votes of the Town Board are recorded, it is clear that the Town Board's motion did not restrict Mr. Maus' access to the Town Board minutes. Instead, the motion requires that Mr. Maus be treated “'just like everybody else” in terms of what information is available to the public. Even Clerk Drobac recognized that the minutes of the Town Board meetings were public information. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As to Mr. Maus' October 1st request “to view the record of the vote of each member on each appropriation of money recorded August and September 2019 Board meetings”, it would appear that the August minutes were clearly available for viewing as they were approved at the September 10th Town Board meeting and were part of the agenda packet made available to the public at the September 10th meeting. It is also clear that the Town Board's motion did not prohibit Mr. Maus from viewing this information.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Board’s comments focusing on meeting minutes here are misplaced. The Board has an obligation to maintain a journal of votes and to provide access to the journal of votes, during all normal business hours where the journal is kept. The result of the Board’s action is to restrict access to the journal of votes to meeting times for Mr. Maus, specifically. This is contrary to the plain language of section 13D.01.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner addressed a similar situation in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267355" target="_blank">Advisory Opinion 07-014</a>:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Given the Supreme Court's direction to construe Chapter 13D in favor of public access, it is the Commissioner's opinion that restricting public access to the journals to the night of the monthly Board meeting is not in compliance with Chapter 13D. The Board should establish more times when the journals are available at the Town Hall or consider changing the location where the journal is stored to one that allows requesters more access.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, the Board should provide a way for all members of the public to access the journal of votes during regular business hours where the records are kept, as required by section 13D.01, subd. 5. The Board cannot restrict, via motion, something that is guaranteed in statute.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Board argued that the members’ conduct was not at issue here, but rather the Township Clerk’s actions in responding to Mr. Maus’s request. While it is outside the scope of the Commissioner’s authority, she notes that perhaps a motion to preclude public access to “emails and stuff” does not provide sufficient direction to township staff members who implement the decisions of the Board.</p> <div xmlns="http://www.w3.org/1999/xhtml"> <hr /></div> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Greenwood Township Board of Supervisors did not provide appropriate access to the votes of members, in response to an October 1, 2019, request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 14, 2020</p>4161852663452663922663642671042022-01-18T19:13:16Z266258266297266272266271<custom:Link urlOnly="true" type="Component" destination="tcm:36-411892" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-11-27T19:45:23Z a data requester asked if a County had responded appropriately to two requests she made for public data. The Commissioner opined that the County responded appropriately to a request for public comments when it emailed the requester a link to the comments, which the requester had previously said would be acceptable. The County did not respond appropriately to a draft spreadsheet when it did not respond to the request promptly and appropriately, did not provide the data in the format in which it was maintained, and failed to assess a reasonable, actual copy cost; the county quoted five different costs and used two different pay scales to calculate costs.November 27, 2019; Rice County36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Rosalyn Pautzke asked for an advisory opinion regarding her right to get access to data from Rice County, under Minnesota Statutes, Chapter 13 (Data Practices Act). The County submitted comments in response to Ms. Pautzke’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Pautzke provided a summary of the facts. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County never responded to my requests on September 6 and September 10 for EAW [Environmental Assessment Worksheet] comment letters. Both requests were submitted to persons identified by the County as Responsible Authority Designees. My initial request for the spreadsheet of EAW comment letter questions was made to Responsible Authority Designees on September 10 and renewed on September 11, 18, 23, and 25. Following my request for the live / native format spreadsheet file, on October 3 the County offered a PDF scan of the poor-quality printed copy and quoted a per page charge of $0.25, which resulted in a $10.00 charge for the digitized 40 pages. I did not assert that charging by page for an electronic file was inappropriate because the PDF of a poor-quality copy was not what I had requested.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On October 4, my renewed request for a live / native format spreadsheet file was denied by the County because they do not release editable files. The spreadsheet is maintained in Excel format….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On October 4 and 14, the County quoted a charge of $9.25 and $9.50 for an uneditable Excel file based on 37 and 38 pages at $0.25 each, respectively. On October 15, I asked whether I would be receiving a file in native format and indicated my willingness to pay the price quoted.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County has not responded.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did Rice County respond appropriately to a September 6, 2019, request for the Wolf Creek Autobahn environmental assessment worksheet comment letters and any attachments pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</li> <li>Did Rice County respond appropriately to a September 10, 2019, request for a draft spreadsheet related to the Wolf Creek Autobahn project pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, by: a. Responding in an appropriate and prompt, reasonable amount of time; b. By providing access to data in the format in which it is maintained; and c. Assessing a reasonable copy charge?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as, “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.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.) Although the Legislature did not define reasonable time, the Commissioner has stated in previous advisory opinions that it is relative to the nature or complexity of the request and amount of data requested. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267656" target="_blank">98-040</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266715" target="_blank">02-020</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266899" target="_blank">14-003</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Minnesota Supreme Court has held:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Section 13.03, subdivision 2(a), dictates that government data be made available and that personnel responsible for making it available establish procedures that insure it is made available. It follows, then, that when the procedures are followed and the requested data are not made available appropriately or promptly, the “established procedures” do not insure that government data are properly available.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Webster v. Hennepin County</em>, et al., 910 N.W.2d 420, 431 (Minn. 2018) (<em>Webster</em>).</p> <p xmlns="http://www.w3.org/1999/xhtml">The <em>Rice County Guidelines and Procedures for the Minnesota Government Data Practices Act</em> (<em>Guidelines</em>) lists the County responsible authority and designees in Appendix A. The responsible authority and data practices compliance official is Catherine Miller, Assistant County Attorney. The designees include the Director of Environmental Services, Julie Runkel, and the County Administrator, Sara Folsted. (See <em>Guidelines</em> pages 32-34). </p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1</strong>: Did Rice County respond appropriately to a September 6, 2019, request for the Wolf Creek Autobahn environmental assessment worksheet comment letters and any attachments pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On September 6, 2019, Ms. Pautzke requested copies of the EAW comment letters the County received. She stated that she would accept the letters electronically via email or as a link. In her opinion request, she stated that the County never responded to her request for the comments. In its response to the Commissioner, the County submitted an email that included a link to all the comments, which the County sent to all the commenters on September 13, 2019. Ms. Pautzke was one of the commenters. Ms. Pautzke argues that this email, which was part of the notification for the EAW comment process, does not satisfy the requirement of responding to her data request. </p> <p xmlns="http://www.w3.org/1999/xhtml">The County argued that it responded appropriately by providing the responsive data via a link in a September 13, 2019, email, even though the email did not specifically state that it was in response to a data request. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the County. Ms. Pautzke asked for data, she gave the County acceptable options for how to respond and the County provided her the requested data in one of the preferred formats (i.e., as a link), in a timely manner. While not strictly required, the Commissioner notes that as a best practice, and for the purposes of clarifying with data requesters when two obligations overlap (i.e., the EAW comment notification process and responding to request for public data), the County might consider noting for requesters that one response satisfies both requirements.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did Rice County respond appropriately to a September 10, 2019, request for a draft spreadsheet related to the Wolf Creek Autobahn project pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, by:</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As a threshold issue, in its comments to the Commissioner, the County argued that the spreadsheet was not a “draft” but rather “a partial document, in its initial stages of creation…. Such a partial document not need [sic] to be released upon request.” The Commissioner has previously opined that public data contained in “drafts” are accessible to the public. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267671">02-026</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267731" target="_blank">05-038</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267581" target="_blank">08-009</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267270" target="_blank">15-006</a>.) In general, the Data Practices Act classifies data, not documents, and classification determines access. Here, the data elements in the spreadsheet are public and the County has an obligation to provide them in a prompt and appropriate manner, regardless of their status as final, draft, partial, or complete.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>a. Responding in an appropriate and prompt, reasonable amount of time</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Pautzke submitted her initial request for the “draft spreadsheet” on September 10, 2019, to Ms. Runkel. She also submitted her request to Ms. Folsted on September 12, 2019. Ms. Folsted stated that she forwarded the request to Ms. Miller. Ms. Pautzke also sent the request to Ms. Miller directly several times. (There is a factual dispute as to how many times Ms. Miller received the request). As of the date of Ms. Pautzke’s advisory opinion request, October 21, 2019, Ms. Runkel had not responded to the request. Ms. Miller responded as noted below.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County made several arguments as to why it responded promptly and appropriately to Ms. Pautzke’s data request. First, it argues that the Ms. Runkel responded appropriately to the September 10 request.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the County wrote that <em>prior</em> to Ms. Pautzke’s written data request, she and Ms. Runkel had a conversation about the spreadsheet. Ms. Runkel informed her:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]hat the spreadsheet was still in the process of being created and that she was not the one creating it.... Thus, when Ms. Pautzke requested the spreadsheet on September 10, Ms. Runkel had nothing to give her because Ms. Runkel did not yet have the spreadsheet. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Ms. Runkel's response to Ms. Pautzke was timely, appropriate, and accurate because the spreadsheet was not yet government data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The conversation described by the County did not constitute an appropriate response, as it took place prior to Ms. Pautzke submitting her written data request. </p> <p xmlns="http://www.w3.org/1999/xhtml">Moreover, the Commissioner has stated in previous advisory opinions that no response is not an appropriate response. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267746" target="_blank">04-008</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267090" target="_blank">09-027</a>). (Apparently, a week after the Commissioner accepted Ms. Pautzke’s request for an advisory opinion, Ms. Runkel sent Ms. Pautzke a letter regarding the spreadsheet.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The County argues that Ms. Miller’s response was prompt and appropriate because after receiving the request on September 23, 2019, she responded on September 25, 2019, stating “[a] spreadsheet is in the initial stages of being drafted and currently does not contain much information. It is currently a list of the questions/issues and does not yet contain any finalized responses. If you would like a copy of this draft, please let me know.” It is unclear why Ms. Miller did not provide a copy of the spreadsheet at this time, as Ms. Pautzke had specifically requested the draft spreadsheet multiple times. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>b. By providing access to data in the format in which it is maintained</em></p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity maintains data in a computer storage medium, the entity should provide it in that medium if it can reasonably make a copy. “This does not require a government entity to provide the data in an electronic format or program that is different from the format or program in which the data are maintained.” (See section 13.03, subd. 3(e).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The County maintains the spreadsheet in an electronic program – Excel. In her October 2 letter to Ms. Pautzke, Ms. Miller referred to a copy charge of 25 cents per page for 40 pages; per-page copy charges relate to paper copies of 100 or fewer and Ms. Pautzke inferred that Ms. Miller was offering her a paper copy. Ms. Pautzke clarified that she wanted an electronic copy, since she was aware that it was a spreadsheet. Ms. Miller then offered her a PDF copy. </p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Miller wrote in an October 4, 2019, letter that the County does not release “documents in editable formats.” Ms. Pautzke agreed to accept a copy with the contents locked but that still allowed her to use the functions in Excel to sort and change the font size. The County said it would not provide her an “editable” version. </p> <p xmlns="http://www.w3.org/1999/xhtml">In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267138" target="_blank">09-006</a>, the Commissioner addressed a similar situation:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>According to Ms. Swanson, the City “typically converts Word documents to PDF so they cannot be altered.” The City also maintains the data in Word format. As noted above, government entities are not obliged to convert data to a particular format in response to a data request. However, they are obligated, upon request, to provide access to data in whatever format they do maintain them. (Minnesota Statutes, section 13.03, subdivision 3(e).) Accordingly, in response to Mr. Siljander's request, the City should have provided him access to the data in Word format.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The result is the same here. The County should provide Ms. Pautzke with the spreadsheet in the format in which the County maintains it, which the Commissioner understands to be an unlocked Excel spreadsheet. (See Issue 2(c) regarding passing along the costs of the County’s decision to lock the spreadsheet to Ms. Pautzke.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that government entities have concerns about data requesters altering data or lifting data from documents. However, public data are available to anyone for any reason and the public can use public data elements in a document or file any way they choose. This does not mean that every spreadsheet or all metadata in a document are public. Here, where the data are public, the requester is entitled to access in the format and program in which it is maintained, as she requested.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>c. Assessing a reasonable copy charge</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act allows government entities to charge for copies. Entities may charge a maximum of 25 cents a page for paper copies of 100 or fewer. Entities may charge actual costs for paper copies of more than 100 pages. (See section 13.03, subd. 3(c).) For copies of electronic data, the “entity may require the requesting person to pay the actual cost of providing the copy.” (See section 13.03, subd. 3(e).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In assessing “actual costs” for public data, an entity may charge for the employee time it takes to search and retrieve the data, as well as the time it takes to transmit the document (it also includes materials and mailing costs, which are not at issue here). The Commissioner has consistently advised that the employee rate used to calculate copy costs should be the lowest paid employee who can make the copy. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267877" target="_blank">00-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-268029" target="_blank">01-033</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267872" target="_blank">01-047</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267937" target="_blank">04-055</a>.) </p> <p xmlns="http://www.w3.org/1999/xhtml">In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267597" target="_blank">04-038</a>, she wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[I]f a government entity, in trying to determine how to arrive at a reasonable fee, recognizes that a lower-paid employee would be able to complete the task, it would be appropriate for the entity to charge a fee based on a rate that is lower than the rate of the employee who actually retrieves the data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The County quoted Ms. Pautzke five different charges for a copy of the spreadsheet: 1) $10.00 (40 pages at 25 cents per page); 2) $10.00 for a PDF copy; 3) $9.25 (37 pages at 25 cents per page) for an uneditable Excel spreadsheet; 4) $9.50 (38 pages at 25 cents per page) for an uneditable Excel spreadsheet; and 5) $8.95 for an uneditable Excel spreadsheet. </p> <p xmlns="http://www.w3.org/1999/xhtml">On October 14, Ms. Miller wrote: “[t]he actual cost to provide the requested information would be over $10.00…. This is calculated as 10 minutes at over $50.00 per hour, including wages and benefits. Therefore, we chose to charge the lesser amount of .25 per page.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote to the Commissioner:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The over $50.00 per hour charge refers to Ms. Miller's base salary. Ms. Miller's exact hourly rate, inclusive of benefits, is $66.00. It would take Ms. Miller ten minutes to prepare the document for Ms. Pautzke, i</em>ncluding locking it down<em>. In her October 3 email, Ms. Pautzke acknowledged that she may be charged for the employee time required to lock down the content of the cells…. Thus, the actual cost of employee time to make and electronically transmit the document was $11.00 (10 min = 1/6 of an hour) (1/6 x $66.00 per hour= $11.00). The County could have chosen to charge $11.00 but, instead, chose to charge the lesser amount of $9.50, which is reasonable.</em> (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">With regard to the November 4, $8.95 quote, the County wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This amount, which was based on the Administrative Coordinator's salary, is also reasonable. The Administrative Coordinator's exact hourly rate, inclusive of benefits, is $35.82. It would take the Administrative Coordinator fifteen minutes to prepare the document for Ms. Pautzke,</em> including locking it down<em>…. Thus, the actual cost of employee time to make and electronically transmit the document was $8.95 (15 min = 1/4 of an hour) (1/4 x $35.82 per hour = $8.95). Although there are three lower paid employees in the Planning and Zoning Office (exact hourly rates at $34.40, $31.45, and $29.70), they are not familiar with Excel and it would take them much longer to prepare and provide the document, resulting in a cost that was more than $8.95. Thus, the County assessed a reasonable charge of $8.95</em>. (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The copy charge structure in the Data Practices Act for actual costs is not based on the amount of data (i.e., how many “pages” in an Excel spreadsheet), but rather the time it takes for an employee to search for, retrieve, and transmit it. The time it would take to search for and retrieve a 37 “page” Excel spreadsheet should be the same as the time it takes to search and retrieve the same spreadsheet when it consists of 38 “pages,” as a spreadsheet is simply one electronic file.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County argues that the originally-quoted copy costs would have been less than the actual costs, and thus would be considered reasonable. However, this argument is based on an inaccurate calculation of the actual costs. In its calculations, the County included the time it would take to “lock down” the spreadsheet, even though that was not a part of Ms. Pautzke’s request, but rather something the County chose to do based on its “policy.” Chapter 13 does not include a requirement to restrict the manipulation or editing of public data elements. The County cannot pass along costs to requesters for activities that are not required or permitted by the law (except in limited situations where an entity voluntarily creates data for a requester). The County’s obligation is to provide access to public data in the way in which they are maintained.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner concludes, based on the forgoing discussion of the issues with Ms. Pautzke’s on-going data request, that the County did not respond appropriately to the September 10 request for the draft spreadsheet. </p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner notes that the County’s current data access policies required by Minnesota Statutes, section 13.025, are from 2017. She reminds government entities that they must review and update the required access policies on a yearly basis, and, as a best practice, following any personnel changes. This enables members of the public and data subjects to know where to direct data requests and ensures that government staff are aware of their obligations to respond. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266427" target="_blank">13-007</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-375057" target="_blank">19-002</a>.) Once the written policies are in place, entities must then have internal procedures to ensure timely and appropriate responses to requests as required by section 13.03. (See also, <em>Webster</em>.) Based on the internal handling of Ms. Pautzke’s requests, it is the Commissioner’s opinion that Rice County did not have internal procedures in place to ensure a timely or appropriate response to this data request.</p> <div xmlns="http://www.w3.org/1999/xhtml"> <hr /></div> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Rice County responded appropriately to a September 6, 2019, request for environmental assessment worksheet comment letters by providing an email with a link.</li> <li>Rice County did not respond appropriately to a September 10, 2019, request for a draft spreadsheet. </li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 27, 2019</p>4118922666132669042665232665672668243750582663832670913750592671252666932669022022-01-18T19:14:26Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-408375" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-10-24T20:19:03ZIn Advisory Opinion 19-012, a member of the public asked whether the conduct of a School Board violated the Open Meeting Law when a quorum of the School Board was present at a committee meeting. The Commissioner determined that a violation did occur. Despite the fact that the committee meeting may have been properly noticed, the School Board did not provide notice that a School Board meeting would also take place. October 24, 2019; ISD 834, Stillwater Public Schools36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Carl Blondin requested an advisory opinion from the Commissioner regarding the ISD 834 – Stillwater Schools – School Board (School Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Attorney Maggie R. Wallner responded on behalf of the School Board.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Blondin stated that at a Finance and Operations Working Group meeting on August 29, 2019, the three regular committee members attended, in addition to a fourth School Board member. He indicated that, </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>No notice was made pursuant to statute that this would be a regular meeting of the ISD 834 board, nor was a notice made that a quorum of the ISD 834 school board would be present. This was not a properly noticed special meeting of the ISD 834 School Board. This was not an emergency meeting of the ISD 834 School Board. This was a committee meeting of a committee that the District informs the public of having only three members, not a quorum. Yet, in spite of those facts, four members, a quorum of the ISD 834 school board, were present, and were able to receive and discuss, and in fact did receive and discuss information related to matters of public concern, deliberate on school business, and potentially take action to bind the board. This appears to be a violation of the Minnesota Open Meeting Law. The law presumes a violation of Minnesota' (sic) open meeting law when a quorum is present and proper notice has not been given.</em> Sovereign v. Dunn<em>, 498 N.W.2d 62 (Minn. App. 1993).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Blondin provided a video recording of the committee meeting, along with a written transcript. The video depicts the fourth board member engaging in a discussion with the committee members, including whether items have been presented to the School Board, an exchange about one-time funding, and a potential form to use to present information to the School Board.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the presence of a quorum of the ISD 834 School Board at a committee meeting on August 29, 2019, violate the Minnesota Open Meeting Law?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a school district is a public body subject to the law. (Minnesota Statutes, 13D.01, subdivision 1(b)(1).) These meetings must be properly noticed pursuant to Minnesota Statutes, section 13D.04. </p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>‘Meetings’ subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</em> Moberg v. Independent School District No. 281<em>, 336 N.W.2d 510, 518 (Minn. 1983).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies...This includes meetings at which information is received which may influence later decisions of such bodies.” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs</em>., 332 N.W.2d 1, 6 (Minn. 1983). And that the purposes behind the law “are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.” (Footnote omitted.) <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002).</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Blondin stated, the School Board provides notice for its regularly scheduled meetings pursuant to Minnesota Statutes 13D.04, subdivisions 1, 2. He indicated that the School Board also has multiple committees, one of which is the Finance and Operations Working Group. On its website, the school board posts the members of each committee.The Finance and Operations Working Group has three members. The School Board also “posts a schedule for these committee meetings on its bulletin board, and keeps a list of its meetings at its main office.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments, the School Board states, “it is undisputed that four School Board members, a quorum, were present at the August 29, 2019, meeting. However, it was a regularly scheduled, properly noticed meeting that was open to the public. Therefore, it is the District’s position that no Open Meeting violation occurred.” In support of its argument, the School Board provided a copy of the Finance and Operations Working Group Meeting Calendar, which included the August 29, 2019, meeting notice. </p> <p xmlns="http://www.w3.org/1999/xhtml">Although the Finance and Operations Working Group may have properly noticed its regularly scheduled meetings, the School Board did not provide notice that a regular or special meeting of the School Board would also occur on August 29, 2019. Each group identified in Minnesota Statutes, section 13D.01, subd. 1 is independently subject to the notice requirements of the OML. Once the fourth School Board member was present to discuss, decide, or receive information as a group relating to the official business of the School Board, the committee meeting also became a meeting of the School Board. </p> <p xmlns="http://www.w3.org/1999/xhtml">The notice provisions of the OML inform the public when a School Board meeting will take place, so the public has “access to the decision-making process” of the relevant public body. St. Cloud Newspapers, 332 N.W.2d at 6. The Commissioner notes that an important aspect of this access is that the public knows which public body is meeting. If the quorum of the School Board present at the August 29, 2019, meeting took a vote and unanimously agreed to an action, they would have bound the entire School Board and circumvented the OML, as the public was only provided notice that a committee meeting was taking place on that date.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The School Board did not comply with the OML when it failed to provide notice of a School Board meeting that took place at the August 29, 2019, Finance and Operations Working Group meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 24, 2019</p>4083752662552663882662892022-02-03T15:05:35Z266258266301266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-402931" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-09-16T14:38:55ZA City asked about the classification of data that the police department collected from a school district pursuant to a subpoena, as part of a criminal investigation. The District argued that the data were private personnel data and retained that classification in the hands of the City. The Commissioner concluded that the data “traveled” from the District to the City and therefore, pursuant to Minnesota Statutes, section 13.03, subdivision 4(a), the data changed classifications; the data were law enforcement data classified by Minnesota Statutes, section 13.82, in the hands of the City.September 16, 2019; City of Shakopee36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><font face="Verdana">On August 7, 2019, the Data Practices Office received an advisory opinion request from Sarah Sonsalla, City Attorney for the City of Shakopee (City). In her letter, Ms. Sonsalla asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the City maintains pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act). Attorneys for Independent School District 720, Shakopee Schools (District), Stephen M. Knutson and Minhquang Trang provided comments on behalf of the District. Rachel Minske, Regional Editor for the <em>Shakopee Valley News</em> submitted comments on behalf of the paper.</font></p> <p xmlns="http://www.w3.org/1999/xhtml"><font face="Verdana">The City provided the following information to the Commissioner.</font></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><font face="Verdana">The City received a data practices request from the Shakopee Valley News for a copy of the "NeuVest Report." The NeuVest Report is a report that Independent School District No. 720 (the "District") had initiated with respect to its employment investigation of Rodney Thompson, a former employee of the District. Mr. Thompson is no longer employed by the District. He resigned from his position and no discipline was imposed on him by the District. The District maintains that the NeuVest Report is private personnel data pursuant to Minnesota Statutes Section 13.43.</font></em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><font face="Verdana">The City, in conjunction with the Federal Bureau of Investigations, also criminally investigated Mr. Thompson with respect to incidents that occurred during the course of his employment with the District. Mr. Thompson pled guilty to federal and state criminal charges and was sentenced to prison. Therefore, the criminal investigation is no longer active.</font></em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><font face="Verdana">In the course of the City's criminal investigation of Mr. Thompson, the City's Police Department obtained an unredacted copy of the NeuVest Report from the District through the means of a search warrant. The NeuVest Report is being maintained by the City as criminal investigative data pursuant to Minnesota Statutes Section 13.82, subdivision 7 as it was received by the City as part of its criminal investigation of Mr. Thompson. Because the criminal investigation of Mr. Thompson is no longer active under Minnesota Statutes Section 13.82, subdivision 7, it is the City's opinion that the Neu Vest Report is now public pursuant to this statute. Since the Shakopee Valley News' data practices request for a copy of the report was made to the City, the City must provide the report.</font></em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em><font face="Verdana">The City and the District disagree with respect to whether or not the NeuVest Report is public when it is in the hands of the City. </font></em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data in a report that the Shakopee Police Department collected from Independent School District 720, Shakopee Public Schools, as part of a criminal investigation, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">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.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data that law enforcement collects, creates, and maintains are classified by Minnesota Statutes, section 13.82. While an investigation is active, subdivision 7 classifies data not listed in subdivisions 2, 3, and 6, as confidential or protected nonpublic. Once an investigation becomes inactive, much of the investigative data classified by subd. 7, become public. Data are inactive investigative data when 1) law enforcement agency or a prosecutorial authority declines to pursue the case; 2) when the statute of limitations has run for a particular offense; or 3) when a defendant has exhausted appeal rights. </p> <p xmlns="http://www.w3.org/1999/xhtml">Data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivisions 2 and 3 list the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.  </p> <p xmlns="http://www.w3.org/1999/xhtml">Data that move from one government entity to another are commonly referred to as “traveling data.” Minnesota Statutes, section 13.03, subdivision 4 provides, in relevant part:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) The classification of a government entity's data shall change if it is required to do so to comply with either judicial or administrative rules pertaining to the conduct of legal actions or with a specific statute applicable to the data in the possession of the disseminating or receiving entity. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(b) …</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(c) To the extent that government data are disseminated to a government entity by another government entity, the data disseminated shall have the same classification at the entity receiving them as they had at the entity providing them. [Emphasis added.]</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has considered traveling data in prior opinions. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267817" target="_blank">96-041</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267705" target="_blank">98-031</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267701" target="_blank">00-004</a>.) In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267710" target="_blank">Advisory Opinion 97-023</a>, she wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In the current situation, data traveled from the Medical Examiner to the Police Department. Once those data were received by the Police Department, the data became subject to the classification specified for law enforcement data in Section 13.82. Because Section 13.82, subdivision 5, states clearly that inactive law enforcement investigative data are public, the classification of the Medical Examiner data received by the Police Department are public.</em> [Note: the legislature renumbered section 13.82, subd. 5 as section 13.82, subd. 7.]</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the District relied on <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-378530" target="_blank">Advisory Opinion 19-005</a> and section 13.03, subd. 4(c), for its argument that data classified as private personnel data at the District remain private at the City. Advisory Opinion 19-005 considered various statutes that classify law enforcement data during and after an investigation. It did not, however, address the issue of data classified by one statute at an entity (here, section 13.43, District personnel data) “traveling” to another entity and changing classifications (here, section 13.82, City law enforcement data). As such, section 13.03, subd. 4, did not apply to the data at issue in that opinion.</p> <p xmlns="http://www.w3.org/1999/xhtml">By contrast, section 13.03, subd. 4(a), clearly applies to the circumstances here. Regardless of the classification of the data at the District, once the City received the report, the classification changed because of the specific statute applicable to data in the possession of the receiving entity. Therefore, when the City collected the report from the District, pursuant to section 13.82, the data in the report became confidential/protected nonpublic active criminal investigative data. Once the data became inactive criminal investigative data, the data in the report became public at the City (except for any data in the report that would otherwise be classified as not public classified by section 13.82).</p> The Commissioner notes that the classification of the data at the City did not affect the classification of the data at the District at any time during the investigation. <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> The data in the NeuVest report maintained by the Shakopee Police Department as inactive investigative data are public, pursuant to Minnesota Statutes, section 13.82, regardless of the classification of the data as maintained by the Shakopee Schools. <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">September 16, 2019</p>4029312664912664612663082670642665872667982022-01-18T19:14:22Z266258266272266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-389237" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-06-19T19:41:52ZIn Advisory Opinion 19-010, a member of the public asked whether a state agency had violated the Data Practices Act because it had not provided her with access to the data he requested (public personnel data on two employees) until eight months after she asked for the data. In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. Here, she opined that given the facts of this specific data request, including the type and amount of data requested, the agency’s response was not timely. June 18, 2019; Minnesota Department of Health36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Beverley Berg asked for an advisory opinion regarding the Minnesota Department of Health’s (MDH) response to her request for data about two MDH employees. Lynn Belgea, Responsible Authority Designee and Data Practices Compliance Official, responded on behalf of MDH.</p> <p xmlns="http://www.w3.org/1999/xhtml">In an email dated March 9, 2018, Ms. Berg asked MDH Commissioner Malcolm and Ms. Belgea for access to “complaints/concerns/investigatory findings” about two MDH employees, one who resigned and another whose employment was terminated. MDH confirmed receipt in an email dated March 12, 2018. In her opinion request, Ms. Berg wrote, “[e]ight months later, November 8, 2018, MDH responded that there wasn’t any responsive data.”<span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <p>Did the Minnesota Department of Health (MDH) respond appropriately to a March 9, 2018, data request, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from a requester who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, an entity must provide the data, advise that the data are classified such that the requester cannot have access, or inform the requester that the data do not exist.</p> <p xmlns="http://www.w3.org/1999/xhtml">In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-340647" target="_blank">18-006</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267963" target="_blank">13-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267469" target="_blank">06-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267662" target="_blank">05-015</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267325" target="_blank">04-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267700" target="_blank">97-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267434" target="_blank">95-006</a>.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Ms. Berg asked for public data on two employees.</p> <p xmlns="http://www.w3.org/1999/xhtml">In her comments to the Commissioner, Ms. Belgea discussed Ms. Berg’s numerous requests to various MDH staff over a number of years. She wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Ms. Berg's request of March 9, 2018, was but one of many formal and informal requests, questions, and other emailed and in-person contacts that Ms. Berg has submitted to MDH staff over several years. In order to respond to her request for an advisory opinion, I feel it necessary to view this request in the context of her numerous other contacts with MDH Responsible Authorities Commissioner Ed Ehlinger and Jan Malcolm, in addition to frequent contacts with the MDH Deputy Commissioner, Assistant Commissioners, Human Resources and Health Regulation Division Directors, and directors of the MDH Office of Health Facility Complaints.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Ms. Berg began making what she termed data practices requests at least as far back as 2014, primarily directed to the MDH Health Regulation Division (HRD) and the HRD Office of Health Facility Complaints (OHFC). She sent her communications via email to HRD and OHFC staff and managers. Her ‘requests’ included asking numerous questions (which are not valid data requests), criticisms of staff, and challenges to internal policies, procedures, and practices.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>MDH policy permits the public to make a request directly to staff of the program that may have the data, rather than making an official request to the Responsible Authority (the Commissioner) or the RA designee (me). However, the policy is clear that, unless the request is submitted to the Commissioner or me, it is not an official data practices request. Consequently, program staff respond directly if they can and seek legal advice from the Commissioner’s Legal Unit as necessary. The data practices function in the MDH Legal Unit does not monitor responses for these inquiries. At some point since then, Ms. Berg began addressing data practices requests to the Commissioner and me. However, she also continued her practice of sending additional inquiries, comments, and questions to MDH executive office and program staff.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges that Ms. Berg has made numerous data requests to MDH, “official” and otherwise, as both types are allowed under MDH’s data access policy.</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Belgea wrote in further detail about Ms. Berg’s interactions with MDH:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>MDH found it challenging to even keep track of Ms. Berg's communications, much less complete responses to her requests. Ms. Berg made numerous requests, many of which were overlapping and repetitive. Many were a mixture of questions and requests that had to be parsed to determine what she was actually getting at. She sent requests to multiple MDH recipients. She sent multi-page emails with requests embedded in the emails. We have sent responses to some of her requests that she stated incorrectly she did not receive. She complained that her computer was not able to open data that was sent and demanded that it be reformatted and sent to her. In some cases, we notified her of completed responses, but she would not come in to MDH to review the responses.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">While the other requests provide relevant context to MDH’s response, this opinion focuses on MDH’s response to Ms. Berg’s March 9, 2018, data request, which was an official request made to the responsible authority for public data related to complaints about two MDH employees. Given the facts of this specific data request, including the type and amount of data requested, MDH’s response to Ms. Berg was not timely.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner wishes to note, however, that had MDH communicated with Ms. Berg beyond its initial confirmation of receipt of her request, the Commissioner might view the circumstances differently. In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-347419" target="_blank">18-010</a>, the Commissioner discussed issues that arise in situations in which a requester makes numerous and/or voluminous data requests:</p> <p xmlns="http://www.w3.org/1999/xhtml">In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266899" target="_blank">14-003</a>, the Commissioner opined that the University of Minnesota had responded appropriately to a data requester, even though the University had not provided any data to the requester after a period of five months. In that opinion, the requester had asked for access to data related to numerous studies conducted by the University. The University acknowledged his request on the same day he sent it. A month later, the University provided him with an estimate of copy charges and a recap of his remaining data requests. Two weeks later, the University provided the requester with a list of responsive studies (83 studies) so he could determine the order in which he wanted to review them. The Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Based on the complexity of the request and the fact that the University has been in continual communication with Mr. Elliot, it is the Commissioner's opinion that the University has acted appropriately in responding to Mr. Elliott's October 20, 2013, request. It seems reasonable that the request might warrant the time that has elapsed, especially in the context of Mr. Elliott's various other requests.</em><span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Department of Health did not respond appropriately to a March 9, 2018, data request, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">June 18, 2019</p>3892372663442663282669042664382668932666772670492665502672202665282669023443452662763750592672202022-01-18T19:14:23Z266258266263266414266375<custom:Link urlOnly="true" type="Component" destination="tcm:36-386246" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-05-30T19:23:17ZThe Office of Higher Education (OHE) asked about the classification of certain program review data it maintained on a private/out-of-state university. The Commissioner opined that while the OHE is conducting the review the data may be classified as not public civil investigative data under Minnesota Statutes, section 13.39. When the review concludes, the data revert to the not public classification they had prior to the investigation or are public. The Commissioner also reiterated that data may be protected as trade secret information under Minnesota Statutes, section 13.37, if the entity determines the data meet the definition in that section. Additionally, Minnesota Statutes, section 136A.64, classifies accreditation reports, records, and information in the program review as not public. Finally, the Commissioner noted that Minnesota Statutes, section 13.03, subdivision 9, classifies data at the time of the request, regardless of any prior or subsequent classification. May 30, 2019; Office of Higher Education36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Office of Higher Education (OHE) Commissioner Dennis Olson asked for an advisory opinion regarding data OHE maintains about Walden University, under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act). Richard A. Duncan and David C. Archer provided comments on behalf of Walden University (Walden).</p> <p xmlns="http://www.w3.org/1999/xhtml">OHE administers the registration process authorizing private colleges and universities to operate in Minnesota pursuant to the Minnesota Private and Out-of-State Public Postsecondary Education Act. OHE wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Under the Act, OHE is responsible for establishing policies and procedures to assure the legitimacy of private postsecondary education institutions and programs. One of OHE's policies and procedures is to investigate complaints from students that question the authenticity and legitimacy of their private institution, its programs, and its adherence to its policies and procedures. In the event of violations of the above items, OHE has authority to request the institution to take remedial action or to take administrative action against the institution.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">…</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>OHE performed a comprehensive program review of Walden and its doctoral programs, as an extension of the registration and student complaint investigation processes. The purpose of this particular comprehensive program review was to 1) understand the context, background, and issues related to student complaints; 2) ensure that doctoral programs are providing quality programs for students; 3) collaborate with Walden to take corrective action, if needed; and 4) substantively decrease the frequency of doctoral student complaints. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In order to meet these goals, OHE requested significant data from Walden to increase OHE's understanding of student complaints, student retention and completion, doctoral curriculum, doctoral faculty, recruitment practices, advertising, and student advising services. Walden has cooperated with the program review, with a continued request that the data provided by Walden was to remain nonpublic, and that the program review content was intended exclusively for OHE to gain additional understanding and context of student complaints, and establish benchmarks to better respond to future student complaints.</em> (Footnotes omitted.)</p> <p xmlns="http://www.w3.org/1999/xhtml">OHE provided the Commissioner with a list of 35 sets of data that it collected during the program review.</p> <p xmlns="http://www.w3.org/1999/xhtml">OHE further wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he legislature is currently considering a bill regarding data classification for program reviews conducted by OHE. In its final form, the bill may include language that classifies program review data as private. Should that bill pass and become law … then there may be only a short period of time where the data is public as the law change would take effect July 1, 2019, after which the data would be classified as private. OHE seeks clarification on its duties to disclose the program review data in that interim period, should it exist.</em></p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Does Minnesota Statutes, section 13.39 classify data of the Minnesota Office of Higher Education (OHE) as confidential or protected nonpublic after the completion of a program review conducted pursuant to Minnesota Statutes, sections 136A.61 to 136A.71?</li> <li>Does Minnesota Statutes, section 136A.64 classify all data provided to OHE by a school subject to a program review or produced by OHE after the review, if the school also provided the information to a federal accrediting agency?</li> <li>Are certain data submitted by a school to OHE during a program review classified as not public trade secret information pursuant to Minnesota Statutes, section 13.37?</li> <li>What is OHE's obligation to provide access to certain program review data in response to a data request that it has already received from a member of the public?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes that all government data are public unless classified as not public by statute, temporary classification, or federal law. (See Minnesota Statutes, sections 13.01, subdivision 3 and 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1</em>: Does Minnesota Statutes, section 13.39 classify data of the Minnesota Office of Higher Education (OHE) as confidential or protected nonpublic after the completion of a program review conducted pursuant to Minnesota Statutes, sections 136A.61 to 136A.71?</p> <p xmlns="http://www.w3.org/1999/xhtml">Data collected by government entities as part of an investigation undertaken to commence or defend a pending civil legal action or which are retained in anticipation of a pending civil legal action, are classified as confidential or protected nonpublic, while the investigation is active. (See Minnesota Statutes, section 13.39.) For data to be classified by section 13.39, the chief attorney acting for the entity must determine that a civil legal action is pending. When the investigative data become inactive, data that were classified as private or nonpublic prior to the legal action revert to that classification and the remainder of the data become public. (See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267726" target="_blank">94-006</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267837" target="_blank">95-048</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267385" target="_blank">98-017</a>). </p> <p xmlns="http://www.w3.org/1999/xhtml">One of the ways in which data become inactive investigative data, is “a decision by the government entity or by the chief attorney acting for the government entity not to pursue the civil action.” (See section 13.39, subd. 3.) Additionally, an investigation may become active again, if the government entity decides to renew the civil action. </p> <p xmlns="http://www.w3.org/1999/xhtml">In its opinion request, OHE wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>During the pendency of a program review all data is classified as investigative under Minn. Stat. [sec.] 13.39 and is therefore classified as nonpublic. The investigative status of the data is only applied while there is any possibility that OHE may take some regulatory action against the institution, which would constitute the required civil action. As the program reviews are now complete, and OHE has determined that there is no pending regulatory action or civil legal action under Minn. Stat. [sec.] 13.39 subd. 3(1), it is OHE's position that any nonpublic or protected nonpublic status under Minn. Stat. [sec.] 13.39 no longer applies. Any request for further information from Walden is merely monitoring, and not investigative.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In arguing that OHE’s continued monitoring means that the civil legal action (i.e., program review) is still pending, Walden wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[W]hether an investigation exists hinges on the underlying facts, and OHE’s “monitoring” is an administrative investigation into Walden’s activities by another name.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Accordingly, to the extent that OHE’s ongoing “monitoring” is more accurately characterized as an investigation under Section 13.39, data collected pursuant to that investigation must remain nonpublic. Minn. Stat. [sec.] 13.39.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267410" target="_blank">Advisory Opinion 99-029</a>, the Commissioner wrote, "whether data may be classified as civil investigative data is substantially the discretion of the government entity's chief attorney." OHE has discretion to determine when the program review is pending. Similarly, OHE makes the decision that it is no longer pursuing the program review. Therefore, while OHE is conducting a “program review,” the data it collects and maintains are active civil investigative pursuant to section 13.39 and are classified as confidential or protected nonpublic. Once OHE determines not to pursue legal action further, the data are inactive civil investigative data and are classified as either public or private/nonpublic based on the classification of the data prior to the pending civil legal action.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2:</em> Does Minnesota Statutes, section 136A.64 classify all data provided to OHE by a school subject to a program review or produced by OHE after the review, if the school also provided the information to a federal accrediting agency?</p> <p xmlns="http://www.w3.org/1999/xhtml">Under statute, OHE shall not disclose “financial records or accreditation reports provided to it by a school,” except in certain circumstances. (See Minnesota Statutes, section 136A.64, subdivision 2.) Further, “all information submitted to the office [of Higher Education] is public information except financial and accreditation records and information.” (Section 136A.64, subdivision 5.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its opinion request, OHE wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Walden argues that any information it submitted to OHE that “either directly involve[s] Walden's accreditation [ ... ] or information produced in the program review that is of the type of information used in an accreditation process,” should be classified as nonpublic pursuant to section 136A.64. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>OHE finds Walden's interpretation of section 136A.64 overbroad. To the extent that Walden has submitted to OHE reports it provided to [the federal accrediting agency, the Higher Learning Commission (HLC)] pursuant to HLC's accreditation process, OHE agrees that these reports are nonpublic. OHE rejects the argument, however, that data provided to OHE pursuant to its registration statute are nonpublic merely because the data has also been provided to an accreditor in some form and at some point in time. Specifically, OHE rejects Walden's argument that because the HLC requires Walden to be compliant with state laws related to the authorization of its educational activities and consumer protection, any and all information OHE collects in the course of determining whether Walden is in compliance with relevant Minnesota law must be considered accreditation data and retain a nonpublic status. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Oversight of postsecondary institutions is a shared responsibility between the federal government, state governments, and accreditation organizations. … These processes are parallel to each other, and the requirements of an accreditor cannot be used to determine that data as nonpublic under the Minnesota Government Data Practices Act (MGDPA).</em> (Footnotes omitted.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Accreditation records and information are nonpublic. To the extent that OHE determines that data Walden submitted pursuant to OHE’s registration and student complaint review authority are “accreditation records and information,” those data are not public. All other data Walden submitted are public, unless classified by another law.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 3</em>: Are certain data submitted by a school to OHE during a program review classified as not public trade secret information pursuant to Minnesota Statutes, section 13.37?</p> <p xmlns="http://www.w3.org/1999/xhtml"> “Trade secret information” is defined as:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</em> (Minnesota Statutes, section 13.37, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Government data that meet the definition of “trade secret” are classified as private data on individuals or nonpublic data not on individuals. (See section 13.37, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has issued a number of advisory opinions on the application of the trade secret provision. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267690" target="_blank">03-009</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267811" target="_blank">03-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267399" target="_blank">06-005</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-360957" target="_blank">18-016</a>.) She has consistently opined that the provision should be interpreted narrowly. Additionally, in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267495" target="_blank">Advisory Opinion 14-018</a>, she wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[W]hile the outside person supplying the data to the government entity bears the burden of establishing that the data meet all of the conditions set forth in section 13.37, subdivision 1(b), the entity is ultimately responsible for determining whether the data warrant classification as trade secrets.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Walden argues that much of the data at issue fit the definition of trade secret information and should be protected. Walden wrote, “[u]nder Minnesota trade secret case law, information that threatens negative commercial consequences if disclosed publicly is protectable as trade secret.” </p> <p xmlns="http://www.w3.org/1999/xhtml">In arguing that the first two prongs of the definition (supplied by the affected organization and subject to reasonable efforts to maintain secrecy) are not at issue, OHE wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As to the third element, OHE finds Walden's arguments unpersuasive and overbroad. The data to which Walden refers is aggregate-level data, critical to understanding the nature and activities of the school. Minn. Stat. [sec.] 136A.64. Additionally, much of the data that Walden now seeks trade secret protection for is already publicly available. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">…</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Under these specific circumstances, OHE recognizes that some, limited portions of the data do warrant such classification, while other portions of the data do not.</em> (Footnotes omitted.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, OHE has made preliminary determinations agreeing with Walden that some of the data are not public trade secret information and disagreeing with Walden’s determination about other data. The Commissioner reiterates that government entities are in the best position to determine whether data fall within the definition of trade secret information in section 13.37. If Walden disagrees with the conclusions reached in this opinion, it can bring an action in court to prevent OHE from disclosing the program review data about Walden.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 4</em>: What is OHE's obligation to provide access to certain program review data in response to a data request that it has already received from a member of the public? </p> <p xmlns="http://www.w3.org/1999/xhtml">Prior to asking for this advisory opinion, OHE received a data request for the data at issue in this opinion. </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.03, subdivision 9 provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Unless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data's classification at the time it was collected, created, or received.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267342" target="_blank">Advisory Opinion 96-011</a>, the Commissioner noted:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he Legislature, on an annual basis, enacts new legislation, and amends and repeals existing statutes. Annually, the Legislature alters the classification of various types of government data. As evidence of its intent, to maintain ongoing control over classification of data, the Legislature enacted Section 13.03, subdivision 9, in addition to the provisions of Section 13.05, subdivision 4, discussed above. Section 13.03, subdivision 9, provides: “[u]nless otherwise expressly provided by a particular statute, the classification of data is determined by the law applicable to the data</em> at the time a request for access to the data is made<em>, regardless of the data's classification at the time it was collected, created, or received.” </em></p> <p xmlns="http://www.w3.org/1999/xhtml">Walden wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[I]f a conflict regarding classification of data under the Data Practices Act arises between the holding in an advisory opinion and a legislative enactment that has not yet taken effect, OHE is not required to adhere to the advisory opinion simply because it appeared first in time. Instead the Office should act in a way that advances, and does not thwart, the legislature's intent.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees with Walden’s characterization of the situation as a conflict between her advisory opinion and future legislative enactment. It is not the Commissioner’s opinion that governs the data at issue, rather it is the plain language of section 13.03, subd. 9. </p> <p xmlns="http://www.w3.org/1999/xhtml">Walden is correct that the Commissioner’s opinions are advisory in nature and a government entity is not bound by the conclusions reached in an opinion. However, an entity that relies on an opinion issued to it, or to another entity or person, “is not liable for compensatory or exemplary damages or awards of attorneys fees in actions for violations arising under section 13.08 or 13.085, or for a penalty under section 13.09.” (See Minnesota Statutes, section 13.072, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">During the pendency of this opinion, the Legislature classified some of the data at issue here as not public. (See, Laws of Minnesota 2019, chapter 64, article 2, section 23, effective July 1, 2019.) The legislation does not expressly provide for the not public classification to apply to data responsive to the existing data request. Thus, the legislative change does not affect the Commissioner’s analysis of this issue. The classification will apply to any data requests OHE receives on July 1, 2019, and going forward.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Minnesota Statutes, section 13.39 does not classify data of the Minnesota Office of Higher Education (OHE) as confidential or protected nonpublic after the completion of a program review conducted pursuant to Minnesota Statutes, sections 136A.61 to 136A.71.</li> <li>Accreditation records and information submitted to OHE as part of a program review are not public data pursuant to Minnesota Statutes, section 136A.64. All other data submitted to OHE are public, unless classified by another law.</li> <li>OHE is in the best position to determine which data in a program review are classified as not public trade secret information pursuant to Minnesota Statutes, section 13.37.</li> <li>Data are classified at the time a government entity receives a data request pursuant to Minnesota Statutes, section 13.03, subdivision 9. Thus, the recent legislative change that takes effect on July 1, 2019, does not affect the pending data request; OHE must provide data classified as public at the time it received the request.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">May 30, 2019</p>3862462663762662662665332669422664172665952669112022-01-18T19:14:22Z266258266282266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-385441" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-05-22T17:54:52Za City Council held closed meetings to discuss allegations against a staff member after it decided to hire an investigator. Minnesota Statutes, section 13D.05, subd. 2(b), requires a public body to close a meeting(s) to consider allegations against an employee subject to its authority until it determines that discipline may be warranted. Once it makes that determination, subsequent meetings and hearings for additional consideration of the allegations must be open. The Commissioner concluded that the Council members did not comply with the Open Meeting Law.May 22, 2019; Tower City Council36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Marshall Helmberger asked for an advisory opinion regarding the Tower City Council (Council) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Andrew R. Peterson, attorney, responded on behalf of the Council.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Helmberger, the Council held one or more closed meetings in 2019 after it decided to hire an outside investigator to look into allegations against the City Clerk-Treasurer. He wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>By agreeing to seek the hiring of an outside investigator, the city council can no longer legitimately claim that its consideration of the allegations is “preliminary.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>... In concluding that the hiring of an investigator is appropriate, the council has self-evidently concluded that “discipline of</em> any <em>nature</em> may <em>be warranted,” (emphasis added)....</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The city attorney argues that the city council can continue to hold meetings in closed session, apparently indefinitely, until the city has concluded its investigation and made a final determination of what, if any, disciplinary action is appropriate.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Such an interpretation is wildly at odds with the clear language of the statute, which specifically limits closed sessions to preliminary consideration of allegations. ...</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Tower City Council violate the Minnesota Open Meeting Law (Minnesota Statutes, Chapter 13D), when it closed meetings to consider “Employee Misconduct Allegations” after it decided to hire an investigator to look into the allegations?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.05, subdivision 2(b) states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. A meeting must also be open at the request of the individual who is the subject of the meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In his comments to the Commissioner, Mr. Peterson discussed Minnesota Statutes, section 13.43, subdivision 2(a) (4) and (5), which states that absent a final disposition of disciplinary action against a public employee, the only related public data are the existence and status of a complaint or charge. He wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In an email that I sent to Mr. Helmberger on March 15, 2019, I told Mr. Helmberger that “the City is in the process of retaining an outside attorney to investigate allegations against … the Clerk-Treasurer.” In my email, I also told Mr. Helmberger that an outside attorney had not yet been retained by the City.... As of the date of this email, the City has not yet retained an outside attorney to investigate the allegations against [the Clerk-Treasurer] and decided to table this issue on April 8, 2019.  The fact that the City may retain an outside attorney to investigate the allegations of [the Clerk-Treasurer] at some time does not mean that the City has decided disciplinary action is warranted. The City would need to gather all of the facts before it can determine whether or not discipline is warranted against [the Clerk-Treasurer]. Since we do not know whether or not disciplinary action will be taken against [the Clerk-Treasurer], there is not a final disposition and only the existence and status of the complaint or charges are public at this time. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">Quoting section 13D.05, subdivision 2(b), Mr. Peterson wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Again, the fact that the City may retain an outside attorney to help them with the investigation does not mean that the City has concluded that discipline of any nature is warranted. Since there has been no final disposition of disciplinary action taken against [the Clerk-Treasurer] by the City, I believe the City did not violate the Minnesota Open Meeting Law when it closed meetings to discuss allegations against [the Clerk-Treasurer] after it was decided to hire an investigator as this would be private data except for the limited data as to the existence and status of such complaint or charge.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees with the Council’s position. Section 13D.05, subdivision 2(b) requires a public body to close a meeting until it determines that discipline may be warranted. Once it makes that determination, it may not close another meeting for additional consideration of the allegations. </p> <p xmlns="http://www.w3.org/1999/xhtml">Furthermore, section 13D.05, subdivision 1(b) states, “… not public data may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Therefore, the Council may discuss not public data, including personnel data classified as private under section 13.43, at an open meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Once it decided to hire an outside investigator to look into allegations against the Clerk-Treasurer (even if that decision was subsequently tabled), the Council apparently determined that disciplinary action <em>may</em> be warranted. Accordingly, all subsequent meetings or hearings related to those specific allegations must be open.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Tower City Council did not comply with the Minnesota Open Meeting Law (Minnesota Statutes, Chapter 13D), when it closed meetings to consider “Employee Misconduct Allegations” after it decided to hire an investigator to look into the allegations.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">May 22, 2019</p>3854412662872663882663922665872665162022-01-18T19:14:20Z266258266282266297375060<custom:Link urlOnly="true" type="Component" destination="tcm:36-385013" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-05-20T15:24:44ZA member of the public asked whether the Houston County Agricultural Society (“Society”) is subject to both the Data Practices Act and the Open Meeting Law. The Society conceded it is subject to the Open Meeting Law, but disputed that it is a government entity for purposes of the Data Practices Act. The Commissioner opined that the Society is subject to the Data Practices Act, as it is a political subdivision as defined by Minnesota Statutes, section 13.02, subd. 11. The Commissioner noted that it is the governing body of the Society that is subject to the Open Meeting Law.May 20, 2019; Houston County Agricultural Society36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Jordan Gerard, of the Spring Grove Herald, requested an advisory opinion from the Commissioner addressing whether the Houston County Agricultural Society (the “Society”) is subject to the Data Practices Act and the Open Meeting Law. Attorney Kevin Roop responded on behalf of the Society.</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Gerard stated, “[t]he Houston County Agricultural Society will not abide my request for minutes, agendas and other requested materials pertinent to an issue. The Society claims they are not a public government entity and therefore not subject to the MN Open Meeting Law nor MN Govt. Data Practices Act.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Is the Houston County Agricultural Society subject to the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13)?</li> <li>Is the Houston County Agricultural Society subject to the Minnesota Open Meeting Law (Minnesota Statutes, Chapter 13D)?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1</em>. Is the Houston County Agricultural Society Subject to the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13)?</p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act governs access to and the protection of government data. All government entities are subject to the Data Practices Act per Minnesota Statutes, section 13.01, subdivision 1.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.02, subdivision 7a defines “government entity” as “a state agency, statewide system, or political subdivision.” Section 13.02, subdivision 11, goes on to define “political subdivision” as “any board, commission, district or authority created pursuant to law, local ordinance, or charter provision.” </p> <p xmlns="http://www.w3.org/1999/xhtml">In the case of county agricultural societies, the legislature enacted Minnesota Statutes, section 38.01, which enables their formation. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner previously issued <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267940" target="_blank">Advisory Opinion 10-004</a>. In this opinion, the Commissioner determined that the Dakota County Agricultural Society is subject to Chapter 13 of Minnesota Statutes. Much of the same analysis applies to the question at hand as both these entities are subject to the same enabling legislation.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Society submitted lengthy comments in response to Ms. Gerard’s advisory opinion request, which included the following statement:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The MGDPA only applies to government entities. Under the MGDPA there are three types of governmental entities: state agencies, statewide systems, and political subdivisions. The MGDPA provides an extensive definition for “political subdivision.” However, the only section of the definition that could apply to the Society is “any board, commission, district or authority created pursuant to law, local ordinance, or charter provision.” This definition does not apply to the Society because it is not a board; It is an organization governed by a board.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Society indicated it concedes “that it is a public body under Chapter 13D of Minnesota Statutes.” However, it went on to state, “this concession does not mean that the Society is a political subdivision under the MGDPA. Furthermore, the Society denies that it is violating or has violated the Minnesota Open Meeting Law.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Society argues that since Minnesota Statutes, section 38.04, states that reports required by this section are public data pursuant to Chapter 13, this section would be “superfluous” if agricultural societies “were political subdivisions under the MGDPA” and that the Legislature’s “apparent need to specify that agricultural society reports are public data implies that most of an agricultural society’s data is not public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Society concluded its comments with the following statement:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Society has followed Minnesota Law. It has given Ms. Gerard the necessary disclosures under §38.04 and the Open Meeting Law. It does not need to give her additional information because it is not a political subdivision under the MGDPA…The purpose of Ms. Gerard’s request is to use this information to harm the Spring Grove Herald’s former employees and the Houston County Agricultural Society. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees with the Society. As indicated above, and pursuant to Advisory Opinion 10-004, a county agricultural society enabled by section 38.01 is a political subdivision that is subject to the Data Practices Act. As further support for this conclusion, section 38.04 indicates that certain data maintained by the Society are public pursuant to Chapter 13. Chapter 13 is only applicable to government entities. It therefore follows that the Society is a government entity and must administer its data pursuant to the Data Practices Act. </p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner notes that the reason or motivation for a public data request is not a permissible consideration in responding to a request.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2.</em> Is the Houston County Agricultural Society Subject to the Open Meeting Law (Minnesota Statutes, Chapter 13D)?</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 1(b)(6) indicates “[a]ll meetings, including executive sessions, must be open to the public…of the governing body of a…public body.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Society concedes that it is subject to the Open Meeting Law. The Commissioner previously issued <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267109" target="_blank">Advisory Opinion 11-012</a>, which addressed whether the Dakota County Agricultural Society Board is subject to the Open Meeting Law, and much of this analysis is applicable to these facts as well. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that it is the Board of the Houston County Agricultural Society that is subject to the Open Meeting Law, as it is the governing body of the Society.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Houston County Agricultural Society is subject to Minnesota Statutes, Chapter 13.</li> <li>The Houston County Agricultural Society Board is subject to Minnesota Statutes, Chapter 13D.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">May 20, 2019</p>3850132669022665722663922459742022-01-18T19:14:20Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-379354" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-04-09T13:16:58ZA city council held a special meeting and provided notice by posting the proposed agenda. At the special meeting, the Council took action on three items that it had not identified in the notice. At a subsequent regular meeting, the Council approved meeting minutes of the special meeting but did not provide a copy of the minutes in the public packet. The Commissioner concluded that the Council members did not comply with the Open Meeting Law at either meeting.April 9, 2019; Rockville City Council 36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Rick Tallman asked for an advisory opinion regarding Rockville City Council (Council) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Council declined to provide comments.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Tallman provided the following summary of the issues.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Rockville city council held a Special council meeting on 2/11/19 which was posted using the agenda as the Public Notice (see the attached 02.11.19_Agenda). It has been the common practice in Rockville for at least a few years to use the meeting agenda as the official Public Notice of meetings….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The city administrator requested additions to the agenda specifically - Item 6a) RTU 2019 Street Project Item and 6b) 2019 COLA Adjustment. The COLA increase for city staff was a very important topic to those in attendance at the December 2018 council meeting as can be viewed in the online recording of the meeting… There was not any public notice for this Special Council Meeting regarding the additions to the agenda that were added as required by MN 13D.04, subd. 2 (see the attached 2.11.19 minutes showing the additions to the agenda). </em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Tallman also wrote that the February 13, 2019, regular meeting agenda listed approval of minutes from previous Council meetings, including the February 11, 2019, special meeting. The Council members had copies of the draft minutes at the meeting, but the Council did not make a copy available in the public packet of members’ materials</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the Rockville City Council comply with Minnesota Statutes, section 13D.04, subdivision 2, at the February 11, 2019, special meeting?</li> <li>Did the Rockville City Council comply with Minnesota Statutes, section 13D.01, subdivision 6, at the February 13, 2019, regular meeting?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1</em> : Did the Rockville City Council comply with Minnesota Statutes, section 13D.04, subdivision 2, at the February 11, 2019, special meeting?</p> <p xmlns="http://www.w3.org/1999/xhtml">For any meeting that is not on the regular schedule of meetings, the OML requires that public bodies provide notice at least three days before the meeting and that the notice include the date, time, place, and purpose of the meeting. (See Minnesota Statutes, section 13D.04, subdivision 2.) That subdivision also allows an individual to request to be notified of special meetings concerning one or more specific subjects. (See Section 13D.04, subd. 2(d).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Tallman stated that the Council’s practice is to post the special meeting agenda as the notice required by section 13D.04, subd. 2. The agenda for the February 11, 2019, meeting included the date, time, and place. For “purpose,” the agenda listed seven items:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li><em>Call to Order Roll Call</em></li> <li><em>Roll Call – (Silence Electronic Devices)</em></li> <li><em>Additions/Approval of Agenda</em></li> <li><em>Ordinance Review</em></li> <li><em>City Fee Schedule</em></li> <li><em>Other</em></li> <li><em>Adjourn</em> </li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Tallman subsequently obtained a copy of the February 11 meeting minutes:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The minutes of the meeting show actually 3 additions -#1 Item 6 a) 2019 Street Project Resolution 2019-08 which was another addition was also acted on passing unanimously. #2 Item 6 b) 2019 Cola - which was acted on and passed by a 3 to 1 vote. The 3rd item under item 6 b) Three new RTU Committee members which was not even on the agenda as an addition or approved as an addition was also acted on passing unanimously.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">While a public body may add (or remove) topics from consideration at a regular meeting (where the notice required does not include listing the “purpose,” see section 13D.04, subdivision 1), it cannot do so at a special meeting. Special meeting notice must identify the purpose and the public body must limit the discussion to that purpose. If the public body does not limit its discussion to the topics stated in its notice, it cannot fulfill its obligation to provide notice to those members of the public who request notice of special meetings concerning specific topics. ( See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267471" title="Advisory Opinion 04-004">04-004</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267582" target="_blank">04-057</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267288" target="_blank">07-024</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267304" target="_blank">10-013</a>. )</p> <p xmlns="http://www.w3.org/1999/xhtml">Because the notice of the February 11, 2019, special meeting, did not adequately describe the “purpose,” the Council did not comply with section 13D.04, subd. 2.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2</em> : Did the Rockville City Council comply with Minnesota Statutes, section 13D.01, subdivision 6, at the February 13, 2019, regular meeting?</p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires that at least one copy of any printed materials relating to the agenda items that are distributed at or before the meeting to all members of the governing body or are available to all members in the meeting room, “shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.” (See section 13D.01, subd. 6.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The agenda for the February 13, 2019, regular meeting includes, “Approval of the Rockville City Council Minutes of January 9, January 28 and February 11, 2019.” Mr. Tallman stated that the public packet did not include the draft minutes for the February 11, 2019, meeting:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I showed the Public copy to both the city attorney and the city administrator after the meeting pointing out that the minutes were not in the public packet. I also had people in attendance of that meeting verify that the 2/11/19 minutes were not in the public copy, nor were they in the online council packet available to the public. A council member had told me that the 2/11/19 minutes were emailed to the councilors from city staff the day before on Tuesday 2/12/19. That would indicate the minutes were available to the council but not the public as is required. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council did not provide a public copy of the February 11, 2019, draft meeting minutes at the February 13, 2019, meeting. Therefore, the Council did not comply with section 13D.01, subd. 6. (See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267319" title="Opinion 08 015" target="_blank">08-015</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-310269" title="Opinion 17 006" target="_blank">17-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies.” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty</em>. <em>Schs.</em>, 332 N.W.2d 1, 6 (Minn.1983). And that the purposes behind the law “are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.” (Footnote omitted.) <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002). Here, the Council discussed and acted on three items that it failed to identify in its special meeting notice and subsequently, approved minutes from that meeting that clearly identified the Council’s action, without providing a copy to the public as required under the OML. In these circumstances, the Council met neither the letter nor the spirit of the law. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Rockville City Council did not comply with Minnesota Statutes, section 13D.04, subdivision 2, at the February 11, 2019, special meeting because it did not provide adequate notice of the purpose of the meeting.</li> <li>The Rockville City Council did not comply with Minnesota Statutes, section 13D.01, subdivision 6, at the February 13, 2019, regular meeting, because it did not make a complete public packet of members’ materials available in the meeting room while it considered the subject matter.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">April 9, 2019</p>3793542663462662902662892022-01-18T19:14:20Z266258266301327537<custom:Link urlOnly="true" type="Component" destination="tcm:36-378530" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-04-04T13:24:40ZA law enforcement agency asked about the classification of data in an inactive criminal investigation of an officer-involved fatal shooting. The Commissioner opined that the data were variously classified under Minnesota Statutes, sections 260B.171 (peace officer records of children), 13.10 (private data on decedents), 13.82 (law enforcement data), and 13.825 (body camera data). The Commissioner also opined that absent clarification from the Legislature, law enforcement agencies have discretion to interpret the scope of the plain meaning of “data that document the discharge of a firearm” that are public under section 13.825.April 4, 2019; Minnesota Department of Public Safety36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">E. Joseph Newton, General Counsel for the Minnesota Department of Public Safety, asked for an advisory opinion about the classification of inactive criminal investigative data about and related to an officer-involved fatal shooting of a child (“the child”) that the Bureau of Criminal Apprehension (BCA) maintains, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. The Commissioner invited Paul Dworak, attorney for the data subject(s), to submit comments in response to Mr. Newton’s request, which he did.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Newton wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On July 13, 2018, the BCA assumed primary investigative responsibility for the investigation of an officer-involved shooting [of the child] that occurred in the city of Chanhassen.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>During the active criminal investigation, the criminal investigative data were classified as confidential or protected nonpublic data under Minn. Stat. § 13.82, subd. 7. The criminal investigation became inactive on October 11, 2018 when the Carver County Attorney declined to charge the deputies involved in the shooting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The nearly 1200 pages of data are primarily comprised of (1) incident and service call reports from the July 13, 2018 incident, (2) narratives of peace officers who were on scene, (3) interviews of the child’s family members and a friend, (4) canvass interviews of neighbors within the vicinity, (5) previous incident and service call reports to the child’s residences, (6) search warrants, (7) Google searches by the child and texts between the child and parents, (8) BCA laboratory reports of examinations of physical evidence, (9) dash cam video, and (10) audio and video data collected by portable recording systems.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Newton also wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>These data are “peace officer records on children” because they constitute a “record” and involve a “child.” For instance, there are incident and service call reports with narratives that document the July 13, 2018 incident when the child was or may have been delinquent or may have been engaged in criminal acts. The incident stemmed from allegedly assaultive behavior and peace officers were responding to address a disturbance caused by the child. These data also include interviews of family members, neighbors, and a friend that contain detailed information about the July 13, 2018 incident and/or impressions about the child who was or may have been delinquent or may have been engaged in criminal acts.</em> </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Newton also asked about data classified under Minnesota Statutes, section 13.825:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>This specific statute strictly addresses data that document the “discharge of a firearm by a peace officer in the course of duty” rather than data that document the entire “incident.” However, the portable recording systems data at issue span the scope of the incident that started with a 911 call and lasted subsequent to the discharge of a firearm by a peace officer in the course of duty. For instance, there are data of peace officers responding to the scene before; during, and after the discharge of a firearm (when officers arrived to assist with the investigation) that do not document any portion of the aforementioned discharge.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13 (Data Practices Act) what is the classification of inactive criminal investigative data maintained by the Bureau of Criminal Apprehension that are “peace officer records of children”?</li> <li>Pursuant to Minnesota Statutes, section 13.825, which data are classified as public: data that document the “discharge of a firearm by a peace officer in the course of duty,” or all data that document the entire “incident” (before, during, and after the discharge of a firearm)?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1</em>: Pursuant to Minnesota Statutes, Chapter 13 (Data Practices Act) what is the classification of inactive criminal investigative data maintained by the Bureau of Criminal Apprehension that are “peace officer records of children”?</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 260B.171, subdivision 5, classifies as private “peace officers’ records of children who are or may be delinquent or who may be engaged in criminal acts.” Peace officer records of children are not confidential, even when an investigation is active.</p> <p xmlns="http://www.w3.org/1999/xhtml">Private data are data on individuals; “individual” means a living human being. (See Minnesota Statues, section 13.02, subdivisions 5 and 9, and Minnesota Rules part 1205.0200, subpart 8.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Under Minnesota Statutes, section 13.10, when an individual data subject dies, data that were classified as private or confidential before death are reclassified as “private data on decedents” or “confidential data on decedents”. </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.82, subdivision 7, classifies inactive criminal investigative data as public, with exceptions:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I</em><em>nactive investigative data are public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 17. Images and recordings, including photographs, video, and audio records, which are part of inactive investigative files and which are clearly offensive to common sensibilities are classified as private or nonpublic data … .</em></p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Newton, his item (1), “Incident and service call reports from the July 13, 2018 incident” include “narratives that document the July 13, 2018 incident when the child was or may have been delinquent or may have been engaged in criminal acts.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Data in the reports that were in existence before the child died and were classified as private peace officer records of a child under section 260B.171, subdivision 5, are now private data on decedents per section 13.10. Data created after the death cannot be private data on individuals, and therefore cannot be classified under section 260B.171; they also cannot be classified under section 13.10. </p> <p xmlns="http://www.w3.org/1999/xhtml">In his comments, Mr. Dworak asserted that all of the data at issue are private. He referenced language in section 13.10, subdivision 3, which states, “[n]onpublic data concerning a decedent, created or collected after death, are accessible by the representative of the decedent,” in support of his position that all of the data at issue are private. However, that provision does not classify data, instead, it clarifies that data that are nonpublic (because they were created after the data subject dies) are accessible to the decedent’s representative.  </p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Newton, data BCA collected or created as part of its investigation into the officers’ shooting are inactive criminal investigative data under section 13.82, subdivision 7. Those data are described in items (2) through (8) (except for (5)) that were either government data created after the death as part of the investigation, or data that were not classified upon their creation. For example, although the Google searches by the child and texts between the child and parents were created before the death, they were not government data until they were collected by BCA as part of the active criminal investigation. Because they were not government data when the child was alive, they could not have been classified under section 260B.171. (See Minnesota Statutes, section 13.02, subdivision 7.)</p> <p xmlns="http://www.w3.org/1999/xhtml">As noted above, inactive criminal investigative data are public unless the data reveal the identity of individuals protected under subdivision 17, or are images and recordings, including photographs, video, and audio, which are clearly offensive to common sensibilities under subdivision 7. </p> <p xmlns="http://www.w3.org/1999/xhtml">Upon review by the Commissioner, some of the data in item (5), “previous incident and service call reports to the child’s residences” are classified as private under either section 260B.171 or section 13.10. Data in the reports that are not classified by either of those statutes are either presumptively public or specifically classified as public under section 13.82, unless they are private per subdivisions 7 and/or 17.</p> <p xmlns="http://www.w3.org/1999/xhtml">Item (9), “dash cam video” on the child before the child died were classified as private peace officers’ records of a child under section 260B.171, and are now private data on decedents under section 13.10. Otherwise, the data are classified under section 13.82, as discussed above.</p> <p xmlns="http://www.w3.org/1999/xhtml">BCA must examine the data elements in items (1) – (9) to determine which of the above statutes classifies the data. Item (10) is discussed in Issue 2.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2</em>: Pursuant to Minnesota Statutes, section 13.825, which data are classified as public: data that document the “discharge of a firearm by a peace officer in the course of duty,” or all data that document the entire “incident” (before, during, and after the discharge of a firearm)?</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.825 classifies “portable recording system data," which are audio or video data collected by a portable recording system (commonly referred to as body camera data) as private, with exceptions. Subdivision 2(a)(1) states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[D]ata that document the discharge of a firearm by a peace officer in the course of duty…, or the use of force by a peace officer that results in substantial bodily harm … are public[.]</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Newton asked the Commissioner about the scope of data that document the discharge of a firearm, i.e., whether it means data that document only the discharge (the firing) of a firearm, or all audio/video data “that document the entire ‘incident’ (before, during, and after the discharge of a firearm)”.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Legislature classified a portion of body camera data created by law enforcement agencies, but provided no definitions or guidelines in the statute as to what constitutes the data that document the weapon discharge. Absent clarification from the Legislature, law enforcement agencies have discretion to interpret the scope of the plain meaning of “data that document the discharge of a firearm”. Accordingly, law enforcement agencies will have to make those determinations in any given situation. </p> <p xmlns="http://www.w3.org/1999/xhtml">However, body camera data on the child before the child died were classified as private peace officers’ records of a child under section 260B.171, and are now private data on decedents under section 13.10. Body camera data about the child after death are public or private under section 13.825. Furthermore, if BCA determines that any otherwise public portions of the body camera data are offensive to common sensibilities, it needs to protect the data per section 13.825, subdivision 2(b).</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Pursuant to Minnesota Statutes, Chapter 13 (Data Practices Act) the data maintained by the Bureau of Criminal Apprehension are classified under three statutes. As discussed above, some of the data are private under Minnesota Statutes, sections 260B.171 and 13.10. Data not classified by those sections are generally public under Minnesota Statutes, section 13.82. However, some of the data may be protected under subdivisions 7 or 17; if so, the data are private or nonpublic.</li> <li>Pursuant to Minnesota Statutes, section 13.825, data that document the “discharge of a firearm by a peace officer in the course of duty,” are public. Law enforcement agencies must determine how much of the body camera data document the discharge of a firearm.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">April 4, 2019</p>3785302672292664712672802663022663082664613785803785812022-01-18T19:14:20Z266258266263<custom:Link urlOnly="true" type="Component" destination="tcm:36-377565" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-03-28T18:19:28ZA school district asked whether it should provide access to a video of two students engaged in an altercation to one of the parents of one of the students. The Commissioner stated that where possible, schools must segregate the requesting parent’s student’s data from any other students’ data. However, relying on federal guidance, the Commissioner concluded, if segregating the data is not possible, then the school should provide the requesting parent with access to the unredacted video.March 28, 2019; ISD 283, St. Louis Park Schools36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Peter Martin, attorney for Independent School District 283, St. Louis Park Public Schools (District) asked the Commissioner to issue an advisory opinion regarding access to certain data that the District maintains under the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">The District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The School District recently received a request from a parent to view certain hallway security video. The requested video depicts an altercation between two students, one of whom is the parent’s child. The video also depicts several students in the background who were not involved in the altercation. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The District then asked whether the requesting parent could have access to the video.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Minnesota Statutes, Chapter 13 and the federal Family Educational Rights and Privacy Act, must Independent School District 283, St. Louis Park Schools, allow a parent of a student in a video access to the video if it also depicts other students?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Both Minnesota and federal law govern data about public school students. Minnesota Statutes, section 13.32, classifies most data relating to students as private and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g, and its implementing regulations, 34 C.F.R. Part 99. Both laws provide for access rights of students and their parents and privacy protections that limit access by others.</p> <p xmlns="http://www.w3.org/1999/xhtml">Educational data are “data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student. (See section 13.32, subdivision 1.) FERPA defines an education record as, “those records that are (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.” (See 34 C.F.R. 99.3.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Under Minnesota law, data subjects, including parents of minor children, have the right to access public and private data about themselves. (See Minnesota Statutes, section 13.04.) Moreover, Minnesota Rules provide that, “[t]he responsible authority shall not deny access by parents to data that is considered an education record, as that term is defined by [FERPA].” (See Minnesota Rules 1205.0500, subpart 4.) The Data Practices Act also gives data subjects the right to consent to the release of their private data to others. (See Minnesota Statutes, section 13.05, subdivision 4(d) and Minnesota Rules 1205.1400, subparts 3 and 4.) </p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act also provides that private data are only accessible to the subject of the data, those authorized by law, those within an entity who need the data to do their job, and those to whom the data subject has given consent. (See Minnesota Statutes, section 13.02, subdivision 12 and Minnesota Rules 1205.0400, subpart 4.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota law does not resolve how a data subject’s right of access to private data is impacted by another data subject’s right to privacy when the private data of the one cannot be separated from the private data of the other. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined that, “[e]ducational data ultimately are controlled by FERPA; the Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.” (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267142" target="_blank">09-021</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-320147" target="_blank">17-010</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">FERPA provides, “[i]f the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.” (See 34 CFR 99.12(a). See also 20 U.S.C. sec. 1232g(a)(1)(A).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In Advisory Opinion 17-010, the Commissioner addressed a similar situation to the one at issue here. She provided a lengthy analysis of the provisions of state and federal law implicated in providing parents access to an audio recording of an interview with their identifiable student, when the recording also contained private data about other identifiable students. </p> <p xmlns="http://www.w3.org/1999/xhtml">Relying on the federal guidance available at the time (see <em>Letter of technical assistance to school district re: disclosure of education records containing information on multiple complainants</em> (FPCO, Oct. 31, 2003)), the Commissioner concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The District must provide access to data on Student to Parent. The District must make every reasonable effort to redact the personally identifiable information on other students from the recording and provide access to Student’s data. Only if the District cannot easily separate Student’s education records from those of other students, then it must “inform” Parent of the specific information about Student.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">On the same day that the Commissioner issued Advisory Opinion 17-010, the Office of the Chief Privacy Officer (OCPO) of the Student Privacy Policy Office (formerly the Family Policy Compliance Office or FPCO) at the U.S. Department of Education, issued a letter addressing a situation nearly identical to the circumstances here. (See the <em>Letter to Wachter</em>, OCPO (December 7, 2017).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <em>Letter to Wachter</em>, a parent of a student shown in a video of a hazing incident that also depicted a number of other students, asked for a copy of the video under applicable state law. (The incident took place in a Pennsylvania public school.) The OCPO concluded that if the school could segregate the data about the parent’s student, then the FERPA requires the school to do so. This is consistent with the Commissioner’s conclusion in 17-010. However, the letter goes on to say that if the school was unable to do so, then the school should provide access to the parents by letting the parent view the unredacted video. The OCPO wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In providing access to the video, the District must provide the parents of a disciplined student (or the student if the student is an eligible student) with the opportunity to inspect and review the video so long as the video cannot be segregated and redacted without destroying its meaning. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">While the Commissioner has not viewed the video at issue here, based on the District’s description, she agrees with the District that the video is an education record under FERPA and educational data under the Data Practices Act of the two students involved in the incident. </p> <p xmlns="http://www.w3.org/1999/xhtml">The District stated that it is unable to segregate the image of the parent requester’s student without destroying the meaning of the record. As stated above, Minnesota law does not resolve the question of providing access under these circumstances. The District has an obligation to provide data subjects access to data and to protect private data on others. </p> <p xmlns="http://www.w3.org/1999/xhtml">The District relied on a previous Advisory Opinion to argue that it could withhold access to the entire video. In Issue 3 of <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267834" target="_blank">Advisory Opinion 03-010</a>, a school district asked about a situation where a parent of a student involved in an incident with a school employee requested a copy of the video of that dispute. The Commissioner concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Thus, in situations where the District determines it is impossible to redact a videotape without inappropriately releasing private data about a student or employee, the District may withhold the entire videotape.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The facts in that opinion are distinguishable from the facts at issue here. Advisory Opinion 03-010 addressed a combination of private educational data and private personnel data (see Minnesota Statutes, section 13.43). Private personnel data are not subject to FERPA, as the data in the District’s video are, which are solely educational data. Moreover, the Commissioner issued Advisory Opinion 03-010 nearly 16 years ago and she assumes that recording and redacting technology have advanced beyond what was reasonable and available to government entities in 2003. As she wrote in Advisory opinion 17-010:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner cautions government entities to pay careful attention to the way in which they create records. The entity must have in place the policies, procedures, and capacities to respond to any data practices requests that might arise subsequent to the creation of records. In other words, if an entity creates an audio recording record, it must ensure it has the capability to redact that recording appropriately, if necessary, in response to a data request.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In the alternative, the District asks the Commissioner to reaffirm her conclusion in Advisory Opinion 17-010, that the parent requester in this situation should be “informed” of the specific information about the parent’s student but not given access to the video. However, the Commissioner relied on federal guidance to reach that conclusion and the federal guidance has changed. The Commissioner cannot ignore the more recent, clear statement from the federal government on the question raised here. Thus, consistent with the most recent federal guidance, the District should provide the parents of the students (or eligible student data subjects) involved in the altercation access to the unredacted video in these circumstances.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District also argued that the students in the background of the video, who were not a part of the altercation, may also be subjects of educational data. (See <em>Echo Newspaper v. St. Louis Park Public Schools</em>, A17-1967 (Minn. App. Aug. 13, 2018) (finding that data that “relates” to a student “appears to cover a wide range of data”).) However, the Data Practices Act defines educational data as “data on individuals” that relate to a student. (See section 13.32, subd. 1.) The phrase “data on individuals” is defined as data in which:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Any individual is or can be identified as the subject of that data,</em> unless <em>the appearance of the name or other identifying data can be clearly demonstrated to be</em> only incidental <em>to the data and the data are</em> not accessed by the name or other identifying data <em>of any individual.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">(See section 13.02, subdivision 5.) (Emphasis added.) Therefore, if the background students’ images are incidental and not accessible by their names (i.e., in their education records or files or labeled by their names), then the video does not constitute educational data on those students and neither they, nor their parents, would be entitled to access the unredacted video. (Under FERPA, images of students in the background of videos are not education records. See <em>Letter to Wachter</em>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner recognizes that all government entities in Minnesota are in a difficult position when administering data that combine private data on multiple data subjects. Educational entities are further challenged by the fact that failure to comply with the requirements of FERPA jeopardizes their continued receipt of federal funding. The Commissioner encourages the legislature to consider educational entities’ data practices duties under state law in light of their FERPA obligations.<span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml">Independent School District 283, St. Louis Park Schools, should allow a parent of a student in a video access to the video even if it also depicts other students, pursuant to the federal guidance interpreting FERPA.  </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 28, 2019</p>3775652664022670122662662671152665332667622663282022-07-28T12:53:09Z266258266775<custom:Link urlOnly="true" type="Component" destination="tcm:36-377591" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-03-28T17:10:41ZA member of the public asked about his right to obtain government data maintained on the cell phones of county sheriff employees. In its response, the county stated that its employees’ personal cell phone records are not government data, contradicting its own policy that the county considers work-related data created, received, recorded, or stored on a personally-owned cell phone government data. The Commissioner opined that the county should have ascertained whether any of the cell phones contained government data, and if so, provided the data to the requester. March 28, 2019; Rice County Sheriffs Office36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Paul Seeman asked for an advisory opinion regarding his right to get access to data from the Rice County Sheriff’s Office, under Minnesota Statutes, Chapter 13 (Data Practices Act). The County submitted comments in response to Mr. Seeman’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Seeman first asked the County in 2016 and 2017 for access to “employment related cell phone call and text records” for three employees. He asked for records from 2014. In response to his renewed request, on February 19, 2019, which is at issue here, the County reiterated its earlier responses, which are the same for each employee: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Detective [XX] utilizes a personal cell phone for calls made away from his office phone at the Rice County Sheriff’s Office. Detective [XX]’s personal cell phone records are not an official government record. Rice County does not collect or maintain the requested records, nor are they in the possession of Rice County. The records you are requesting are not government data, and as such are not subject to the Minnesota Government Data Practices Act.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Rice County Sheriff’s Office respond appropriately to a February 1, 2019, data request, pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as, “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.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">In arguing that the information Mr. Seeman requested does not constitute government data, the County wrote to the Commissioner: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Rice County believes it responded appropriately when responding to Mr. Seeman’s February 1, 2019 request for personal cell phone records of the Sheriff Office’s employees. Rice County’s position is that the data requested is not government data. ….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The documents Mr. Seeman requested were not collected, received, maintained, or disseminated by any government entity and, accordingly, are not government data subject to the Minnesota Government Data Practices Act. Furthermore, Rice County did not create the cell phone records, the cell phone provider did, so Rice County did not create these records either. ….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Lastly, Rice County Sheriff’s Office is not in the possession of the requested record. As stated earlier, Minn. Stat. §13.82, subd. 18, provides “nothing in this section shall require law enforcement agencies to create, collect or maintain data which is not required to be created, collected or maintained ... “. Rice County did not need the cell phone records for its criminal investigation, therefore, it did not collect these records from the cell phone provider. Since there was no reason to gather this information as part of the investigation, Mr. Seeman, through a data request, cannot require the Sheriff’s Office to collect documents it would not normally obtain. Because the documents were never in the possession of Rice County, there is nothing to disclose. Rice County does not have records responsive to Mr. Seeman’s data request.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In 2008, the Commissioner opined that when a superintendent used a personal data recorder to record portions of a school board meeting, he was acting in his official capacity and therefore, the recording was government data. The Commissioner stated that in many situations, government employees use their own equipment (cars, computers, cell phones, pagers, etc.) for work-related purposes. It is not reasonable to conclude that in those situations, related data are not government data. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266866" target="_blank">Advisory Opinion 08-028</a>; see also <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267413" target="_blank">Advisory Opinion 12-019</a>.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the County’s policy 702.5.1 “PUBLIC RECORDS” states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Work related information including data created, received, recorded or stored on a personally owned [Personal Communication Device “PCD”] in the course of office duties is considered government data subject to the requirements of the Minnesota Government Data Practices Act and discovery obligations (Minn. Stat. § 13.01 et seq.).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">According to the County’s own policy, it recognizes that its employees may have government data on their cell phones (PCDs), which contradicts its statements to Mr. Seeman in denying him access. It is not clear from the record if the County ever searched for the data Mr. Seeman requested, or just rejected his request outright. Also, it does not matter if the County “did not need the cell phone records for its criminal investigation”. If the employees’ cell phones contained government data, the County needed to find out if any of the data were responsive to Mr. Seeman’s request. The Commissioner notes, however, that only those data that a government employee creates and maintains on a personal device, as part of the employee’s work related duties, are considered government data. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <p class="MsoNormal" style="margin-left:.5in" xmlns="http://www.w3.org/1999/xhtml">The Rice County Sheriff’s Office did not respond appropriately to a February 1, 2019, data request, if it did not ascertain whether the employees’ cell phones contained government data. </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 28, 2019</p>3775912668882669822022-01-18T19:14:19Z266258375060<custom:Link urlOnly="true" type="Component" destination="tcm:36-375057" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-03-08T22:00:32ZA member of the public asked if a state board was in compliance with the Data Practices Act if it did not provide access to the policies required under Minnesota Statutes, section 13.025. The board did not reply to the data request, which the Commissioner opined is not an appropriate response to a request for access to government data. Further, section 13.025 requires government entities to make the access policies available to the public in a manner such that the public does not have to ask for them.March 8, 2019; Minnesota Board of Aging36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Beverley Berg asked for an advisory opinion regarding the Minnesota Board of Aging’s response to a request for copies of the policies required pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).The Board declined to submit comments in response to Ms. Berg’s request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Berg wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>November 11, 2018, I submitted a Data Practices request to Responsible Authority Kari Benson for 1) the Policy for requesting Public Data and 2) the Policy for requesting Private Data. November 11 was about ten weeks ago. Responsible Authority Kari Benson has failed to respond to my request for either policy. The public is not required to submit Data Practices requests to obtain these policies. Entities are required by the Minnesota Government Data Practices Act to have these policies available at all times by making them available from the entity's website, providing them upon request or having them available at the entity's office. </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Responsible Authority for the Minnesota Board on Aging respond appropriately to a request for copies of the policies required under subdivisions 2 and 3 of Minnesota Statutes, section 13.025?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from a requester who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, an entity must provide the data, advise that the data are classified such that the requester cannot have access, or inform the requester that the data do not exist.</p> <p xmlns="http://www.w3.org/1999/xhtml">Under Minnesota Statutes, section 13.025, an entity’s responsible authority “must prepare a written policy detailing its data access policies.” Further, it provides that the responsible authority “shall make copies of the policies available to the public.” The responsible authority may fulfill that obligation by distributing free copies, posting the policies in a conspicuous place, or posting it on the entity’s website.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Rules, Chapter 1205 also provides guidance about access procedures for members of the public and data subjects.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has issued numerous opinions on the access policies and procedures required by Minnesota Statutes, Chapter 13, the Data Practices Act. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267246">04-049</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266477">05-003</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266427">13-007</a>.) The requirement for access policies was effective January 1, 2001. The Legislature recodified the access policy provisions in section 13.025 in 2012.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Responsible Authority for the Minnesota Board on Aging did not reply at all to Ms. Berg’s request for public data, which is not an appropriate response to a request for access to government data. Further, section 13.025 requires government entities to make the access policies available to the public in a manner such that the public does not have to ask for them.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml">The Responsible Authority for the Minnesota Board on Aging did not respond appropriately to a request for copies of the policies required under Minnesota Statutes, section 13.025, subdivisions 2 and 3.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Alice Roberts-Davis <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">March 8, 2019</p>3750572664263750593750582022-01-18T19:14:19Z266258266297266264<custom:Link urlOnly="true" type="Component" destination="tcm:36-363622" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2019-01-02T22:15:00ZA city asked whether it responded appropriately to a data request for information from a Facebook page maintained by the mayor, when it replied to the requester that the information was not government data. The Commissioner opined that the city had responded appropriately because the mayor created and maintained the page outside of his official duties and the city did not collect, create, receive, maintain, or disseminate the information. Thus, the information did not fit within the definition of government data.January 2, 2019; City of Victoria36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: The United States Supreme Court discussed issues involving government officials’ social media posts and the public’s First Amendment rights in <em>Lindke v. Freed</em>, No. 22-611 (2024).</strong></p> <p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On December 4, 2018, the Data Practices Office received an advisory opinion request from Robert J. V. Vose, City Attorney for the City of Victoria (City). In his letter, Mr. Vose asked the Commissioner to issue an advisory opinion regarding the City’s response to a data request pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (Data Practices Act).</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following information to the Commissioner. The City received a data request on November 7, 2018 for:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[C]ertain data or information related to a Facebook page established by Victoria Mayor Thomas Funk known as “Victoria Residents First.” On November 9, 2019, the City’s responsible authority e-mailed a Department of Administration official seeking advice regarding this request. The Department’s response, enclosed, was that the Facebook page and its contents are not “government data” and thus the City is not required to provide responsive data. The City replied to [the data requester] in accordance with this informal advice. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Mayor uses “Victoria Residents First” to post his personal views on various issues, some of which have been, or might be, considered by the City Council. In turn, people sometimes reply to the Mayor’s posts and this periodically results in further discussion or debate on the Facebook page.</em> [Footnote omitted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The City further noted that it does not have any social media policies that apply to its elected officials, who do not maintain regular hours and are compensated by City ordinance. The City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Mayor and council members are expected to attend council meetings and other official City meetings, and to take whatever time is needed in advance of such meetings to be familiar with the agenda and supporting materials. They may also periodically participate in other events on behalf of the City.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the City of Victoria respond appropriately to a data request for information from the Facebook page “Victoria Residents First,” pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are defined as, “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.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In arguing that the information on the Facebook page does not constitute government data, the City wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Department [of Administration] broadly construes the term "government data." In Advisory Opinion Nos. <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267620" target="_blank">95-013</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-266866" target="_blank">08-028</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267413" target="_blank">12-019</a>, the Department concluded that data such as audio recordings, e-mail, and text messages may be "government data" even if collected, sent or received by a public official on a personal device that is not owned or provided by the governmental unit. However, it appears that only Advisory Opinion No. 18-005 addresses a request for, among other data, "social media communications." That opinion does not resolve whether posts and other activities on social media such as Facebook, conducted by an individual governmental official without the governmental unit's authorization or involvement, constitute "government data."</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We agree with the Department's informal advice that "Victoria Residents First" Facebook page does not constitute "government data" because the data associated with this Facebook page was not collected, created, received, maintained or disseminated by the City of Victoria. The City did not create the Facebook page and the City Council has not authorized or approved Mayor Funk's establishment of such page or his participation on the page as the Mayor. Neither state law nor City of Victoria policies require the mayor or council members to participate in social media such as Facebook. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">While the Mayor may certainly use social media to interact with his constituents, either as a candidate or as an elected individual, doing so does not make the information posted on those sites “government data.” According to the City, the information on the Facebook page was not created in the course of the Mayor’s City-sanctioned responsibilities and did not represent the City’s official position on issues. As such, the City did not collect, create, receive, maintain, or disseminate the information as a government entity. Consequently, the Facebook information does not meet the definition of “government data” and the City is not required to collect and provide access to it.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that while members of a public body, like the Mayor, are allowed to use social media (see Minnesota Statutes, section 13D.065), they must still be cognizant of the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). The Supreme Court has defined a “meeting” as a gathering of a quorum or more of public officials, where they, “discuss, decide, or receive information as a group on issues relating to the official business of that governing body.” <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983). Therefore, public body members should refrain from engaging in discussions over social media that include a quorum or more of the public body members.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml">The City of Victoria responded appropriately to a data request for information from the Facebook page “Victoria Residents First,” pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, because the requested information is not government data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">January 2, 2019</p>3636222664782667692672242664402664352669732663802024-04-22T19:39:50Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-363544" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-12-28T18:25:39ZA watershed district asked whether a member of the board of commissioners could attend meetings via interactive television from Florida. The Commissioner concluded that the geographical limitation imposed by the Minnesota Supreme Court in Quast v. Knutson, 150 N.W.2d 199 (Minn. 1967), only applied to situations when an entire public body held a meeting outside the territorial confines of its jurisdiction. Minnesota Statutes, section 13D.02, allows members to attend via interactive television when all of the conditions of that section are met. December 28, 2018; Rice Creek Watershed District Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p><strong>Note: In 2025, the Legislature amended Minnesota Statutes, section 13D.02 related to the requirements for public bodies to conduct meetings by interactive technology.</strong></p> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On December 10, 2018, the Data Practices Office received an advisory opinion request from Phil Belfiori, Administrator of the Rice Creek Watershed District (District). In his letter, Mr. Belfiori asked the Commissioner to issue an advisory opinion regarding the District Board Members’ duties under the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML).</p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided the following information in its opinion request:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Rice Creek Watershed District hereby requests an advisory opinion to address whether a member of the board of managers may participate in board meetings while out of state by means of the "interactive television" provision of the Minnesota Open Meeting Law (OML). Minn. Stat. §13.02. One member of the board of managers would like to participate in meetings while spending the winter months in Florida.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Our legal counsel has reviewed the Minnesota Department of Administration (MDA) Advisory Opinion 13-009, issued on March 19, 2013, concluding that “the plain language of the statute does not forbid a member of a public body from ‘attending’ a public meeting at a location ‘open and accessible to the public’ outside of the entity's geographic area.” Our attorneys questioned this conclusion in light of the Minnesota Supreme Court decision in</em> Quast v. Knutson<em>, 150 N.W.2d 199 (Minn. 1967) where the Court ruled that the phrase "open to the public" as used in a section of the OML means "within the territorial confines" of the public body.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>May a member of the Board of Managers for the Rice Creek Watershed District participate in board meetings while out of state via interactive television, pursuant to Minnesota Statutes, section 13D.02?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML allows members of public bodies to attend and participate in meetings via interactive television if certain conditions are met. (See Minnesota Statutes, section 13D.02.) Specifically, section 13D.02, subd. 1, requires:</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li>all members of the body participating in the meeting, wherever their physical location, can hear and see one another and can hear and see all discussion and testimony presented at any location at which at least one member is present;</li> <li>members of the public present at the regular meeting location of the body can hear and see all discussion and testimony and all votes of members of the body;</li> <li>at least one member of the body is physically present at the regular meeting location; and</li> <li>each location at which a member of the body is present is open and accessible to the public.</li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">Subdivision 2 provides that all members who “attend” via interactive television are present for quorum purposes. Subdivision 4 provides the notice requirement for public bodies using interactive television. The Commissioner has previously interpreted “interactive television” to include Skype and other similar applications. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267172" target="_blank">Advisory Opinion 13-009</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In 1967, the Minnesota Supreme Court held that a school board must hold its meetings within the territorial confines of the school district. <em>Quast v. Knutson</em>, 150 N.W.2d 199 (Minn. 1967). In previous advisory opinions, the Commissioner has interpreted that case to apply to all public bodies subject to the OML. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267613" target="_blank">06-012</a> – statewide task force; <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266653" target="_blank">08-034</a> – township board; and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266653" target="_blank">18-003</a> – city council.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the District’s legal counsel has advised that <em>Quast</em> limits a public body member’s ability to attend meetings by interactive television to situations where the member is within the territorial confines of the District. However, a public body’s use of interactive television is distinguishable from the situation in that case. In <em>Quast</em>, the entire school board held a meeting outside of the school district it served. The Court was concerned with the prospect that a public body could remove itself from the territorial confines of the public body’s jurisdiction, thereby frustrating members of the public from attending meetings and functionally holding closed meetings. Here, in order to utilize interactive television, “at least one member of the body [must be] physically present at the regular meeting location,” members of the public in attendance – regardless of location – must be able to see and hear all member discussion, testimony, and voting, and locations from which members attend by interactive television must also be open and accessible to the public. Therefore, the Court’s concerns in <em>Quast</em> regarding the openness of meetings outside the geographic area of a public body are remedied at meetings in which only some members attend by interactive television.  </p> <p xmlns="http://www.w3.org/1999/xhtml">The <em>Quast</em> decision applies to an entire public body holding a meeting outside its territorial confines. The Court has yet to address the issue of location of meetings in other contexts. Thus, the plain language of section 13D.02 governs and board members of the District, and other public bodies, may use interactive television to attend and participate in meetings that meet the conditions of that section. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner reminds the District that the Board member attending via interactive television from Florida must do so from a location that is “open and accessible” to the public and must provide notice according to section 13D.02, subd. 4.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml">A member of the Board of Managers for the Rice Creek Watershed District may participate in board meetings while out of state via interactive television, pursuant to Minnesota Statutes, section 13D.02, as long as the conditions of that section are met.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 28, 2018</p>3635442671502026-02-26T21:57:26Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-362508" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-12-14T22:45:36ZA member of the public asked if a watershed district had violated the Open Meeting Law when it allowed members to participate in a meeting via telephone in order to reach a quorum. The Commissioner opined that per section 13D.021, there must be a declared emergency under Minnesota Statutes, Chapter 12 for a local (versus state-level) public body to conduct a meeting via telephone.December 14, 2018; Bois de Sioux Watershed District Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Michelle Swenson asked for an advisory opinion regarding the Bois de Sioux Watershed District Board of Managers (Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Lukas Croaker, attorney, responded on behalf of the Board.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to Ms. Swenson, a Board member participated by telephone at regular meetings on October 17, 2017, and January 16, 2018, in order to reach a quorum. Ms. Swenson wrote, “[t]his is a violation of [Minnesota Statutes,] section 13D.021 as the presiding officer for this governing body had not determined that an in-person meeting or a meeting conducted under section 13D.02 was not practical or prudent because of a health pandemic or an emergency declared under chapter 12.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the members of the Bois de Sioux Watershed District Board of Managers comply with Minnesota Statutes, section 13D.021, when, in order to reach a quorum, a member participated by telephone at the October 10, 2017, and January 16, 2018, meetings?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, Chapter 13D, requires meetings of public bodies to be open to the public, with limited exceptions. There are two provisions in the OML that allow public bodies to conduct meetings by telephone. Minnesota Statutes, section 13D.015 allows <em>state</em>-level agencies, boards, commissions, departments and public pension plans to conduct meetings by telephone if certain conditions are met.</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.021, allows all public bodies to conduct meetings by telephone if conditions similar, but not identical to, those required by section 13.015 are met. In addition, the threshold requirement in section 13D.021 is that “the presiding officer, chief legal counsel, or chief administrative officer for the affected governing body determines that an in-person meeting or a meeting conducted under section 13D.02 is not practical or prudent because of a health pandemic or an emergency declared under chapter 12.” (Minnesota Statutes, section 12.03, subdivision 1e, defines “declared emergency” as “a national security or peacetime emergency declared by the governor under section 12.31.”)</p> <p xmlns="http://www.w3.org/1999/xhtml">In his comments to the Commissioner, Mr. Croaker stated that at both meetings in question, the Board believed it was complying with the OML when the Board members called in to the meetings in order to reach a quorum. He wrote, “[i]t was a mistaken belief, as the conditions listed under Minn. Stat. § 13D.021 were not met.” He stated that the Board did not intentionally violate the OML, and “the Board made a mistake, which the Board now recognizes and will not allow it to happen in the future.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges that the Board understands that it may not conduct meetings by telephone, under section 13D.021, unless it determines that it is warranted due to a health pandemic or declared emergency.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml">Members of the Bois de Sioux Watershed District Board of Managers did not comply with Minnesota Statutes, section 13D.021, when, in order to reach a quorum, a member participated by telephone at the October 10, 2017, and January 16, 2018, meetings.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 14, 2018</p>3625082663883625072663922022-01-18T19:16:14Z266258266293266301<custom:Link urlOnly="true" type="Component" destination="tcm:36-361276" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-12-06T18:39:55ZA city asked about the classification of certain data related to the final disposition of disciplinary action in an “Investigation File,” which is now part of an active criminal investigation. The city discussed the operation of section 13.43, and concluded that the data in the Investigation File are public personnel data. The Commissioner agreed that the data are public when maintained by the city and confidential/protected nonpublic at the prosecuting attorney’s office, consistent with a 2016 Minnesota Supreme Court case, Harlow v. State Dept. of Human Services, 883 N.W.2d 561 (Minn. 2016).December 6, 2018; City of Eden Prairie36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to the City:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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."</em></p> <p xmlns="http://www.w3.org/1999/xhtml">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:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em> </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the data related to the final disposition of disciplinary action in the “Investigation File,” which is now part of an active criminal investigation?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">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).) </p> <p xmlns="http://www.w3.org/1999/xhtml">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):</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[A] final disposition occurs when the government entity makes its final decision about the disciplinary action,</em> regardless of the possibility of any later proceedings or court proceedings<em>. ... 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</em><em>.</em> [Emphasis added.]</p> <p xmlns="http://www.w3.org/1999/xhtml">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”.</p> <p xmlns="http://www.w3.org/1999/xhtml">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.  </p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267885" target="_blank">Advisory Opinion 96-017</a>, the Commissioner addressed this question:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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</em> its final decision <em>regarding disciplinary action prior to the criminal proceeding, and there has been a</em> final disposition <em>of that disciplinary action. Therefore, according to the language of Section 13.43, subdivision 2, the disciplinary data in question are public.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">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 <em>Harlow v. State Dept. of Human Services</em>, 883 N.W.2d 561, 568 (Minn. 2016)). The Court wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>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.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In <em>Harlow</em>, the Minnesota Supreme Court did not address the interaction of sections 13.43 and 13.82. Nonetheless, the Court’s conclusion in <em>Harlow</em> 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. </p> <p xmlns="http://www.w3.org/1999/xhtml">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.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoListParagraph" style="margin-right:.5in;mso-add-space:auto" xmlns="http://www.w3.org/1999/xhtml"> 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.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">December 6, 2018</p>3612763612752671432670992667522664052022-01-18T19:16:14Z266258266414<custom:Link urlOnly="true" type="Component" destination="tcm:36-360957" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-11-30T18:48:13ZA government entity asked about the classification of certain financial data that it maintains about one of its licensee racetracks. The entity argued that the data at issue did not meet the definition of “trade secret” in section 13.37 because the licensee did not demonstrate that the data derived “independent economic value, actual or potential, from not being generally known.” The Commissioner agreed with the entity’s determination that the data were not trade secret and therefore, presumptively public.November 30, 2018; Minnesota Racing Commission36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Racing Commission (MRC) asked for an advisory opinion regarding data it maintains pursuant to Minnesota Statutes, Chapter 13, the Minnesota Government Data Practices Act. </p> <p xmlns="http://www.w3.org/1999/xhtml">MRC provided a summary of the facts, as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>By way of background, the two Minnesota licensed racetracks are required to provide the MRC with a number of disclosures as part of their license applications, including annual audited financial statements. These financial statements must reflect "the applicant's current assets, including investments in affiliated entities, loans and advances receivable and fixed assets and current liabilities, including loans and advances payable, long term debt and equity." See Minn. R. 7870.0070, item A and Minn. R. 7870.0240, item A. In order to provide closer oversight throughout the year, the MRC has requested that the racetracks also provide us with quarterly unaudited financial statements, which they have done. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We understand the data may be considered application data under Minn. Stat. [section] 13.41. The question is whether these financial statements - both the annual audited financial statements and the quarterly unaudited financial statements - may also meet the definition of "trade secret information" under Minn. Stat. [section] 13.37, subd. 1 (b) such that they may be classified as nonpublic data under Minn. Stat. [section] 13.37, subd. 2 in the case of a racetrack that is a privately held entity.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of certain financial data that the Minnesota Racing Commission maintains on a licensee?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless otherwise classified. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Government data that meet the definition of “trade secret” are classified as private data on individuals or nonpublic data not on individuals. (See Minnesota Statutes, section 13.37, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.37, subdivision 1(b), provides the definition of trade secret:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Trade secret information means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has issued a number of advisory opinions on the application of the trade secret provision. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267736" target="_blank">96-035</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267690" target="_blank">03-009</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267811" target="_blank">03-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267399" target="_blank">06-005</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267495">14-018</a>.) He has consistently opined that the provision should be interpreted narrowly. Additionally, in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267495" target="_blank">Advisory Opinion 14-018</a>, he wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[W]hile the outside person supplying the data to the government entity bears the burden of establishing that the data meet all of the conditions set forth in section 13.37, subdivision 1(b), the entity is ultimately responsible for determining whether the data warrant classification as trade secrets.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its letter to the Commissioner, the MRC wrote that it asked the affected licensee racetrack to provide a rationale for its assertion that the data qualify for trade secret classification. The MRC stated:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In applying this definition [of trade secret in section 13.37], we are satisfied that these data are a compilation supplied by the affected organizations, i.e. the racetracks. In the case of the privately held racetrack, we agree that the information has been the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The issue is whether the financial statements derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The financial statements in question are not data unique to racetracks. Similar to the financial statement of other types of businesses, they contain high-level information on revenues, expenses, assets, liabilities and equity. It is not evident to the MRC as to how this information derives independent economic value from not being known or ascertainable by a competitor or anyone else who may derive economic value from it.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Therefore, we asked the affected entity to provide rationale on how their financial statements meet this third prong of the definition. The essence of their argument is that the information would give its "major competitor," the other racetrack, "a competitive advantage by allowing it to refine [its] own business practices to compete more effectively with [us] and potentially poach [our] customers." They also state the information is "current, detailed, highly secret, and proprietary." We find this response to be vague and insufficient to establish the third prong of the definition. It is also a bit disingenuous because, in previous submissions to the MRC, the affected entity has not identified the other racetrack as being a major competitor. (Attachment 5) In fact, the Minnesota legislature specifically placed geographic and other restrictions on the affected entity so as to minimize competition with the other racetrack. See Minn. Stat. § 240.06, subp. 5-5a. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Financial statements are included in a long list of detailed disclosures required of racetrack license applicants. See Minn. Stat. 9 [sections] 240.06 and 240.07 and Minn. R. 7870. The law also requires a public hearing to be held before a license can be issued. Minn. Stat. [sections] 240.06, subd. 2 and 240.07, subd. 2. We thus believe the legislature intended for licensing data in this highly-regulated business, including financial disclosures, to be open to public scrutiny.</em> [Footnote omitted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the MRC did not find the licensee’s arguments to be persuasive and the Commissioner concurs with the MRC. If counsel for the privately held racetrack, Running Aces, disagrees with the conclusion reached in this opinion, she has the option of bringing an action in court to prevent the MRC from releasing the data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has a final comment. The MRC noted that it may consider some of the data at issue to be application data under Minnesota Statutes, section 13.41. Section 13.41 classifies certain data about applicants for licenses and data about licensees as private, confidential, and public. Those not public classifications – private and confidential – apply solely to data on individuals. Therefore, any data maintained by the MRC about racetrack applicants or licensees that are <em>not</em> data on individuals, cannot be classified pursuant to section 13.41. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267848" target="_blank">03-004</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267850" target="_blank">04-006</a>.)</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Certain financial data submitted by a licensee to the Minnesota Racing Commission do not meet the definition of trade secret data in Minnesota Statutes, section 13.37, and are therefore presumptively public.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">November 30, 2018</p>3609572022-01-18T19:16:12Z266258266781<custom:Link urlOnly="true" type="Component" destination="tcm:36-356852" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-10-26T16:52:58ZA member of the public asked the Commissioner about the Professional Educator Licensing and Standards Board’s (PELSB) response to a request for access to additional information regarding the reasons PELSB entered into a Stipulation Agreement and Consent Order with a licensee, due to maltreatment of minors. The detailed data the requester sought related to the nature of the maltreatment. Per Minnesota Statutes section 13.41, subdivision 5, because PELSB and the licensee agreed to resolve the complaint without a public hearing, the only related public data are the “agreement and the specific reasons” for it. The Commissioner agreed with PELSB that the Order itself is “the agreement,” and the factual findings in the stipulation constitute the “specific reasons” for the agreement. October 26, 2018; Professional Educator Licensing and Standards Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On September 17, 2018, the Data Practices Office received an advisory opinion request from Representative Jenifer Loon. In her letter, Representative Loon asked the Commissioner to issue an opinion regarding the Professional Educator Licensing and Standards Board’s (PELSB) response to a data practices request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Representative Loon provided a summary of the facts. She asked PELSB for “all stipulation and consent agreements” entered into by the Board since January 1, 2018. PELSB provided all of the agreements Representative Loon requested.</p> <p xmlns="http://www.w3.org/1999/xhtml">Representative Loon wrote to the Commissioner:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Upon further review of one of the stipulation and consent agreements, I noticed a teacher’s license was suspended and stayed due to maltreatment of minors. The agreement did not specify what the maltreatment was that led to the stayed suspension of the license. … I requested additional details from PELSB, and they responded they could not provide the details of maltreatment because it was considered inactive investigatory data which is classified as private data under Minn. Statute 13.41 subd. 2.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I contend that under Minn. Stat. 13.41 that PELSB did take disciplinary action, and therefore the information I am requesting regarding the details of maltreatment is public data. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…. The Stipulation and Consent Agreement is the tool by which there is an agreement to avoid the contested case hearing. Therefore, the agreement - the stipulation agreement - and the “specific reasons for the agreement are public data.” The stipulation agreement does not provide specific reasons on why the disciplinary decision is limited to a stayed suspended license. </em><em> </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Minnesota Statutes, section 13.41, did the Professional Educator Licensing and Standards Board respond appropriately to a request for certain data related to a Stipulation and Consent Agreement? </p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.41, subdivision 4, when a licensing agency investigates one of its licensees, and the investigation is active, the related data are confidential. Once the investigation becomes inactive, the classification of the data depends upon whether the agency took disciplinary action against the licensee. </p> <p xmlns="http://www.w3.org/1999/xhtml">In general, under section 13.41, subdivision 2(a), all “inactive investigative data relating to violations of statutes or rules” are “classified as private.” Subdivision 5 articulates certain exceptions for inactive investigative data if the agency took disciplinary action. Specifically, subdivision 5, states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Licensing agency minutes, application data on licensees except nondesignated addresses, orders for hearing, findings of fact, conclusions of law and specification of the final disciplinary action contained in the record of the disciplinary action are classified as public, pursuant to section 13.02, subdivision 15.</em> The entire record concerning the disciplinary proceeding is public data pursuant to section 13.02, subdivision 15, in those instances where there is a public hearing concerning the disciplinary action. If the licensee and the licensing agency agree to resolve a complaint without a hearing, the agreement and the specific reasons for the agreement are public data<em>.</em> [<em>Emphasis added.</em>]</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, if the agency took disciplinary action, certain related data become public, depending upon the process and outcome. If there was a public contested case hearing, the entire record concerning the disciplinary proceeding is public. If there was no public hearing, a subset of data in the entire record is public. If the licensee and licensing agency agree to resolve the matter without a hearing, the agreement and specific reasons for the agreement are public. All other data not specified as public under subdivision 5, remain classified as private inactive investigation data under subdivision 2(a).</p> <p xmlns="http://www.w3.org/1999/xhtml">Representative Loon is correct that PELSB did take disciplinary action. However, PELSB and the licensee agreed to resolve the complaint without a public hearing. PELSB provided Representative Loon with the Stipulation Agreement and Consent Order, the tool used to document the agreement reached between PELSB and the licensee. She then asked for additional data related to the maltreatment report. </p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, PELSB stated: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Representative Loon is requesting data contained in the record (i.e., a Maltreatment Determination Report) that would be publicly available</em> only <em>if a public hearing had been held regarding the matter. Specifically, Minn. Stat. § 13.41, subd. 5, makes the entire record concerning the disciplinary proceeding public</em> only <em>when there is a public hearing concerning the disciplinary action.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>PELSB contends that the Board’s announcement of the adoption of Stipulation Agreements and Consent Orders should not be considered a “public hearing concerning the disciplinary action” for the purposes of Minn. Stat. § 13.41, subd. 5.  PELSB votes to adopt or reject signed stipulations during closed session, as it is acting within its quasi-judicial capacity based on non-public data. PELSB then moves to open session and announces the adoption of stipulation agreements that adopted during closed session.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Stipulation Agreement and Consent Order at issue confirms that the public hearing contemplated by section 13.41 in this case is a contested case hearing, and that right to a hearing is waived by entering into the Stipulation Agreement and Consent Order (see Minnesota Rules 8710.2100, subpart 3). </p> <p xmlns="http://www.w3.org/1999/xhtml">Without a public hearing, all inactive investigative data are private unless identified as public in subdivision 5. Here, the designated public data – the “agreement and specific reasons for the agreement” – are in the Stipulation Agreement and Consent Order. According to PELSB, the factual findings (i.e., the reasons for the agreement) are that the Minnesota Department of Education determined that the licensee committed maltreatment of three students, thus violating a subpart of the Code of Ethics for Minnesota Teachers, which states, “[a] teacher shall make reasonable effort to protect the student from conditions harmful to health and safety.” (See Minnesota Rules, part 8710.2100, subpart 2(B).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, PELSB added:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>If Representative Loon’s position is correct that the Board’s announcement of a stipulation and consent order constitutes a “public hearing,” Minn. Stat. § 13.41 subd. 5’s provision for the resolution of a complaint without a hearing is superfluous, and licensing agencies would have difficulty in distinguishing the difference between “instances where there is a public hearing concerning the disciplinary action” as compared to instances when “the licensee and the licensing agency agree to resolve a complaint without a hearing.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>When a complaint is resolved without a hearing, only the agreement and specific reasons for the agreement are public data. Minn. Stat. § 13.41, subd. 5.  PELSB believes that the Stipulation Agreement and Consent Order, which contains “the agreement and specific reasons for the agreement,” meets this requirement. The Stipulation Agreement and Consent Order itself is “the agreement” that must be classified as public data, and the factual findings in the stipulation constitute the “specific reasons” for the agreement.  </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner concurs with PELSB that the subdivision 5 provision related to resolution of a complaint without a hearing would be superfluous if it was not intended to distinguish between public data contained in the Stipulation Agreement and Consent Order entered into without a public hearing and additional data that become public following a public hearing.</p> <p xmlns="http://www.w3.org/1999/xhtml">In her opinion request, Representative Loon argued that “the stipulation agreement does not provide specific reasons on why the disciplinary decision is limited to a stayed suspended license.” The Commissioner notes that the statute does not require specific reasons for the disciplinary action to be made public, but rather classifies as public “the specific reasons for <em>the agreement</em>” when a complaint is resolved without a hearing. [Emphasis added.] While the Commissioner appreciates that the public may find additional information of interest, in this instance, PELSB provided Representative Loon with the agreement and specific reasons for the agreement. Given that the phrase “specific reasons” is not defined in section 13.41, and without additional legislative guidance, each government entity is in the best position to determine the meaning of the phrase within the context of section 13.41. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.41, the Professional Educator Licensing and Standards Board responded appropriately to a request for certain data related to a Stipulation and Consent Agreement.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman    <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 26, 2018</p>3568522663532669352022-03-15T14:00:49Z266258266263<custom:Link urlOnly="true" type="Component" destination="tcm:36-356119" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-10-18T12:58:20ZMultiple school districts asked whether private educational data could be released pursuant to a subpoena. The Commissioner opined that since Minnesota Statutes, section 13.32, subdivision 3(e), incorporates the FERPA regulations – which allow for disclosure without consent pursuant to subpoena when there has been a reasonable effort to notify the parents – Minnesota allows disclosure in response to a subpoena when those conditions are met.October 18, 2018; multiple school districts36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On behalf of a number of school districts represented by Kennedy and Graven, Adam Wattenbarger asked for an advisory opinion regarding data that the districts maintain pursuant to Minnesota Statutes, Chapter 13, the Minnesota Government Data Practices Act (Data Practices Act). </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Wattenbarger provided a summary of the facts. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>School Districts often receive subpoenas duces tecum compelling the disclosure of student records as part of a legal proceeding. For example, the attorney of a parent in a custody dispute may subpoena education records to be used in family court. The issue that arises is whether, under Minn. Stat. [section] 13.32, school districts may disclose private educational data in response to a lawfully issued subpoena. </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Minnesota Statutes, Chapter 13 and the federal Family Educational Rights and Privacy Act, may a school district disclose private educational data in response to a subpoena? </p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Data about students and their parents are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and parents and incorporates the authority to share student data as allowed by the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. (See section 13.32, subdivision 3(e).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined, “[e]ducational data ultimately are controlled by FERPA; the Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.” (See Advisory Opinion 09-021.) The purpose of FERPA, “is to set out requirements for the protection of privacy of parents and students.” (See 34 CFR 99.2.)</p> <p xmlns="http://www.w3.org/1999/xhtml"> Section 13.32, subdivision 3, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Except as provided in subdivision 5, educational data is private data on individuals and shall not be disclosed except as follows:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(e) pursuant to the provisions of United States Code, title 20, sections 1232g(b)(1), (b)(4)(A), (b)(4)(B), (b)(1)(B), (b)(3), (b)(6), (b)(7), and (i), and Code of Federal Regulations, title 34, sections 99.31, 99.32, 99.33, 99.34, 99.35, and 99.39;</em></p> <p xmlns="http://www.w3.org/1999/xhtml">FERPA regulations provide:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by [section] 99.30 if the disclosure meets one or more of the following conditions:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(9)</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the U.S. Department of Education Family Policy Compliance Office (FPCO), in a 1996 letter to counsel for school districts in California, wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>While a lawfully issued subpoena or court order may compel disclosure of information, FERPA does not require an educational institution to disclose information from a student's education record to anyone other than to the parent of a student to whom the records relate or to the eligible student to whom the records relate. Rather, FERPA permits disclosure of education records without prior written consent in certain limited situations, such as when the records are the subject of a subpoena or court order.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The attorney for the school districts here, wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Under federal law, it is clear that [disclosure pursuant to a subpoena] is permitted. The Federal Educational Rights and Privacy Act (“FERPA”) provides that a school may disclose education records pursuant to a judicial a judicial order or “any lawfully issued subpoena,” provided that the school makes a reasonable effort to notify the parent or eligible student in advance of compliance, so that the parent or eligible student may seek protective action. 20 U.S.C. [section] 1232g(b)(2)(B); 34 C.F.R. [section] 99.31(a)(9)(i). </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>By contrast, under the Data Practices Act, educational data may be disclosed “pursuant to a valid court order.” Minn. Stat. [section] 13.32, subd. 3(b). The statute does not list a subpoena as a valid exception for disclosing educational data. However, the statute <span style="text-decoration: underline;">does</span> allow disclosure pursuant to a number of FERPA provisions and regulations, including all of 34 C.F.R. [section] 99.31. See Minn. Stat. [section] 13.32, subd. 3(d). Notably, section 99.31, as cited above, is the FERPA regulation that contains the exception which allows for disclosure of education record pursuant to a lawfully issued subpoena (albeit subject to reasonable advance notice).</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Therefore, based on the plain language of the statute, it appears that the Data Practices Act incorporates the FERPA provisions that allow disclosure pursuant to a subpoena. Because Minn. Stat. [section] 13.32 says that educational data may be disclosed pursuant to the provisions of 34 C.F.R. [section] 99.31, and section 99.31 say that data may be disclosed pursuant to a lawfully issued subpoena, it follows that under Minn. Stat. [section] 13.32, educational data may be disclosed pursuant to a lawfully issued subpoena (after following the FERPA notice requirements).</em> (Emphasis provided.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the school district’s counsel. Even though a subpoena is not specifically mentioned, state law expressly allows for sharing pursuant to the FERPA regulations. Because FERPA regulations permit entities to share based upon a lawfully-issued subpoena after the school makes a reasonable effort to notify the student’s parents, a school would not violate the Data Practices Act by providing access to private educational data, provided that the school follows the requirements of FERPA. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that while section 13.32, subd. 3(b), lists “court order” as one of the exclusive circumstances in which an educational authority may share private student data without consent, that state provision does not reference the additional FERPA requirement regarding the reasonable attempt to notify the student’s parents. When releasing private educational data without consent pursuant to a court order, educational authorities must also comply with the FERPA notice requirements. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">A school district may disclose private educational data in response to a subpoena, pursuant to Minnesota Statutes, Chapter 13 and the federal Family Educational Rights and Privacy Act, provided it makes a reasonable attempt to notify the student’s parents.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman    <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 18, 2018</p>3561192668642671152662662022-01-18T19:16:11Z266258266264<custom:Link urlOnly="true" type="Component" destination="tcm:36-355746" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-10-16T16:17:38ZThe Star Tribune asked the Commissioner about the classification of correspondence between a County Commissioner and the National Republican Congressional Committee (NRCC). The Commissioner relied on the reasoning of Advisory Opinion Advisory Opinion 10-023 and opined that the County improperly classified the data as private under Minnesota Statutes, section 13.601, subdivision 2. The private classification of section 13.601 is reserved for communications between elected officials and individuals. The NRCC, as an organization, does not meet the definition of "individual" under the Data Practices Act, but is instead properly categorized as a "person" under Minnesota Statutes, section 13.02. A Kanabec County District Court judge considering the Advisory Opinion subsequently came to the same conclusion as the Commissioner and ordered the County to release the data in question.October 16, 2018; St. Louis County36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On September 25, 2018, Leita Walker, counsel for Star Tribune Media Company LLC (the <em>Star Tribune</em>), asked the Commissioner to issue an advisory opinion regarding the <em>Star Tribune</em>’s right to access certain data maintained by St. Louis County (the County). Nick Campanario, attorney for the County, provided comments in support of his client.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to facts provided by the <em>Star Tribune</em>, on March 20, 2018, <em>Star Tribune</em> reporter J. Patrick Coolican made a data request to the County for all correspondence between St. Louis County Commissioner Pete Stauber and the National Republican Congressional Committee (NRCC). On April 3, 2018, the County responded by stating it had recovered 15 responsive emails, but that they were withholding the data pursuant to Minnesota Statutes, section 13.601, subdivision 2. (The <em>Duluth News Tribune</em> also requested an advisory opinion regarding the County’s classification of the emails.)<span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did St. Louis County respond appropriately to a request for a County Commissioner’s correspondence when it denied access pursuant to Minnesota Statutes, section 13.601?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1). When an entity denies access to data, it must cite the specific statutory authority or other legal justification for the denial. (Minnesota Statutes, section 13.03, subdivision 3(f).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.601, subdivision 2, states “[c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The proper classification of correspondence between an elected official and a person who acts on behalf of an organization was previously addressed by the Commissioner in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266863">Advisory Opinion 10-023</a> (issued October 27, 2010):</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In classifying the data as private, the Legislature provided a mechanism by which an individual can correspond with his/her elected official on a matter that is personal to that individual… [T]he Commissioner does not believe the Legislature intended for the protection afforded under section 13.601, subdivision 2, to apply to an individual writing as a representative of an organization. First, and foremost, the classification of private applies to data on individuals (as opposed to data about organizations or businesses). See</em> International Brotherhood of Electrical Workers, Local No. 292 v. City of St. Cloud, <em>765 N.W.2d 64 (Minn. 2009). It is unlikely that someone corresponding on behalf of an organization is writing about an issue as a private citizen and not about an issue related to the organization. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The <em>Star Tribune</em> justified its position as follows: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We urge the Commissioner to issue an opinion concluding that, consistent with [Commissioner's Advisory] Op. No. 10-023, the requested data [are] public and should be disclosed immediately.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">And:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he private classification of data pursuant to § 13.601, subd. 2 applies only to data on individuals as private citizens, and does not apply to individuals acting as representatives of organizations.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, the County urged the Commissioner to “overrule” the conclusion in Advisory Opinion 10-023:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>E-mail is a form of correspondence. Commissioner Stauber is an elected official. And the person on the other end of each withheld e-mail is an “individual,” a term that is defined in another unambiguous statutory provision, Minn. Stat. § 13.02, subd. 8 (2018), which specifically provides, “‘Individual’ means a natural person” – that is, a human being. Thus, the e-mails are classified as private data on individuals, as provided in the first part of section 13.601, subdivision 2… A natural person acting as something other than a private citizen is still a flesh-and-blood natural person and, thus, still an ”individual” for the purposes of the MGDPA in general and section 13.601, subdivision 2, in particular.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has not seen the emails that are the subject of this advisory opinion, but can opine on whether the data could have a private classification based on the rationale provided by the County. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act contains distinct definitions for both “individual” and “person.” As noted by the County, “individual” means a “natural person”, i.e. a human being. In contrast, the term “person” is more expansive, including “individuals” and also artificial persons such as partnerships, corporations, and associations. (Minnesota Statutes, section 13.02, subdivision 10). See <em>Intl. Brotherhood of Elec. Workers, Loc. No. 292 v. City of St. Cloud and Design Electric Inc.</em>, 765 N.W.2d 64 (Minn. 2009) (“The definition of ‘individual’ stands in contrast to the definition of ‘person,’ which is defined as any “individual” or “corporation.”). The plain language of section 13.601, subdivision 2, is clear; had the legislature intended to classify correspondence between elected officials and organizations as private under section 13.601, it would have used the term “person” instead of “individual.” The legislature’s decision to use the term “individual” evidences an intent that correspondence between elected officials and organizations is not meant to be classified as private. </p> <p xmlns="http://www.w3.org/1999/xhtml">Treating as a matter of course, as the County suggests, every instance of correspondence with individuals as if it were from an “individual” and not a “person” would render the distinction between those two defined terms moot. The County is correct that, by its very nature, correspondence will necessitate composition or receipt by a human being. The crux of the analysis under section 13.601, subdivision 2, however, is whether the correspondent is an agent of an artificial person such as a corporation or an organization. To that end, any correspondence between Commissioner Stauber and a party that communicates on behalf of the NRCC is presumptively public because, as an agent of an artificial person, that party is properly defined by the Data Practices Act as a “person.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner would like to also address one additional issue. While the County ultimately determined that there were no text messages responsive to the Star Tribune’s data request, it stated in its original response: “[w]ith regard to text messages, Commissioner Stauber does not have a county owned mobile device, therefore the county is not the custodian of the data.” The Commissioner has previously opined that government employees and public officials can create and maintain government data on personal devices and accounts. (See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266866">Advisory Opinions 08-028</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266863">10-023</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267413">12-019</a>.) Therefore, to the extent that county commissioners are creating public government data via text, the County is responsible for providing access to those data. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">If the emails that are the subject of this opinion request are correspondence between County Commissioner Stauber and a representative of the NRCC, the data are public and the County did not respond appropriately to the <em>Star Tribune</em>’s request under Minnesota Statutes Chapter 13.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman   <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 16, 2018</p>3557462662683792142022-01-18T19:16:11Z266258266768<custom:Link urlOnly="true" type="Component" destination="tcm:36-354432" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-10-04T15:05:10ZMetropolitan Emergency Services Board (MESB) asked the Commissioner about the classification of a geospatial dataset that MESB creates and maintains. MESB is a regional joint powers board established by the nine metropolitan counties; the data set covers that region. MESB wanted to publish the dataset to make it more easily accessible to the public. Minnesota Statutes, section 16E.30, subdivision 10, defines “electronic geospatial data,” and Minnesota Statutes, section 466.03, subdivision 21(b) states that the data are presumptively public. Accordingly, the Commissioner opined that the data in MESB’s geospatial dataset are public. October 4, 2018; Metropolitan Emergency Services Board 36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2018). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On September 13, 2018, the Data Practices Office received an advisory opinion request from Jill Rohret, Executive Director of Metropolitan Emergency Services Board (MESB). In her letter, Ms. Rohret asked the Commissioner to issue an advisory opinion regarding classification of a geospatial dataset that MESB creates and maintains.  </p> <p xmlns="http://www.w3.org/1999/xhtml">MESB provided a summary of the facts. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The geospatial dataset in question represents the geographic coverage of Emergency Service Zone (ESZ) and Public Safety Answering Point (PSAP) service areas in the nine-county metropolitan region. The MESB wishes to publish this geospatial dataset publicly for download via the Minnesota Geospatial Commons geospatial data clearinghouse … and to make it available for integration into web-mapping applications with partner organizations in both the metropolitan region and around the state.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The MESB is a regional joint powers board established by the nine metropolitan counties of Anoka, Carver, Chisago, Dakota, Hennepin, Isanti, Ramsey, Scott and Washington, as well as the City of Minneapolis. The MESB works on behalf of its members to oversee and manage the metropolitan portion of the ARMER public safety radio system and the regional 9-1-1 system, and to provide regional leadership, planning, coordination, and support for public safety communications and EMS providers, resulting in efficiencies for local government and consistent public safety response within the metropolitan region. The MESB’s collaborative inter­governmental approach ensures optimal response to emergencies and large-scale public safety events occurring within the region.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>An emerging part of the MESB’s work is the increasing need to develop and deploy technologies which utilize geospatial data. The MESB actively consumes various kinds of geospatial data from municipal, county, and regional partners and, as a regional agency, the MESB is the authoritative source for producing and managing datasets presenting the ESZ and PSAP service areas.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of certain data in a geospatial dataset the Metropolitan Emergency Services Board maintains?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">MESB described the data elements in the dataset in detail. MESB wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Based on the MESB’s understanding of the current legal context, it holds that these data are public under the applicable portions of the Minnesota Data Practices Act, the data can be appropriately defined as "electronic geospatial data" pursuant to Minnesota Statutes Chapter 16E.30, Subd. 10, and that the MESB is protected against liability for any errors or omissions present in the data pursuant to Minnesota Statutes Chapter 466.03, Subd. 21. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The MESB wishes to provide this data to the public and to its partner agencies for their mapping and analysis uses. The MESB does not wish to endanger or jeopardize the safety or effectiveness of first responders, police, fire, EMS, or other emergency service personnel, their work, equipment or activities. The MESB takes the position that public knowledge of the information contained within these data is not a security issue as many of the facts contained in the data are already well known to the public or discoverable by other means.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>No information contained in the data we proposed to publish can be defined as “not public,” “nonpublic,” “private data on individuals,” or “protected nonpublic data” pursuant to Minnesota Statutes 13.02.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Through this letter of request, the MESB chiefly seeks to confirm that release of these data is not in violation of any known applicable federal or state laws, or any special designations made by the Minnesota Legislature relative to its release, pursuant to Minnesota Statutes 13.03, Subd. 1.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 16E.30, subdivision 10 defines “electronic geospatial data” as, “digital data using geographic or projected map coordinate values, identification codes, and associated descriptive data to locate and describe boundaries or features on, above, or below the surface of the earth or characteristics of the earth’s inhabitants or its natural or human-constructed features.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Along with the liability protection provided by Minnesota Statutes, section 466.03, subdivision 21(b) states, “[g]eographic information systems data is government data subject to the presumption of section 13.01, subdivision 3. ….”</p> <p xmlns="http://www.w3.org/1999/xhtml">Further, public government data may be used by any person for any purpose, without liability. (See Minnesota Statutes, section 13.02, subdivisions 13 and 14, and Minnesota Rules, part 1205.0300, subpart 2.) Accordingly, the geospatial data set at issue is public government data, and MESB may make it accessible to the public. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Data in a geospatial dataset the Metropolitan Emergency Services Board maintains are public. </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">October 4, 2018</p>3544322669112667592669902022-01-18T19:16:09Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-347600" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-08-01T13:34:30ZA member of the public asked whether a town board had violated the Open Meeting Law (OML) by not providing, in the public packet of members’ materials, a copy of a document the board discussed. The Commissioner acknowledged that the document was available to the public at an earlier meeting, and that the board read it aloud at the meeting in question. The Commissioner concluded that nonetheless, the board violated the OML by not having a least one public copy of members’ materials available to the public, as required by Minn. Stat. § 13D.01, sub. 6. August 1, 2018; Greenwood Township Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">John Bassing asked for an advisory opinion regarding the Greenwood Township Board (Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Michael C. Couri, Attorney, responded on behalf of the Board.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Bassing:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the May 8, 2018, regular meeting of the Greenwood Township Board, a revision of the Greenwood Fire Department’s Standard Operating Guidelines [SOG] was listed on the agenda. When the Board addressed this topic, the Fire Chief (the Fire Chief is an employee of the Township) asked if the Board would like to have a copy of the revision, and he proceeded to pass out copy [sic] to each and every Supervisor. The Clerk did not receive a copy and no public copy was available for viewing. I request a Supervisor’s packet for every meeting, and the revision was not in my packet.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Bassing submitted an audio recording of the May 8, 2018, meeting.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the members of the Greenwood Township Board comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members’ materials available to the public at its May 8, 2018, meeting?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, Chapter 13D, requires meetings of public bodies to be open to the public, with limited exceptions. Minnesota Statutes, section 13D.01, subdivision 1(b)(5), states that the governing body of a town is included in that requirement.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13D.01, subdivision 6, requires that at least one copy of any printed materials relating to the agenda items that are distributed at or before the meeting to all members of the governing body, or are available to all members in the meeting room, “shall be available in the meeting room for the public to review.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the Commissioner, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The document at issue was a one-page amendment to the Township’s Standard Operating Guidelines (see attached document). This document contained one paragraph of text. This SOG was first included in the April 10, 2018 Town Board meeting agenda packet. It was read aloud at a Town Board meeting on April 18, 2018. Although this document was omitted from the May 8, 2018 Town Board meeting agenda packet, the Fire Chief brought copies to the May 8, 2018 meeting and <strong>asked those in attendance if anyone needed copies. He then passed out copies to those who asked for one.</strong> In addition, the entire document was read aloud at the May 8, 2018 meeting. The Board delayed taking any action on the SOG until the June 12th meeting, when it was adopted by the Town Board.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Although the SOG was not in the May 8th agenda packet for the public, it was read aloud in its entirety at that meeting (and at the April 18. 2018 meeting), thereby informing all in attendance of exactly what the Board was considering. The Township believes that both the offer of copies to anyone who did not have one and reading the document aloud meets the spirit of Minn. Stat. 13D.01, Subd. 6.</em> [Emphasis added.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The Board acknowledges that the SOG was not in the public packet. However, Mr. Bassing and the Board do not agree as to whether the Board explicitly asked non-Board members present if they would like a copy of the SOG. The audio recording supports Mr. Bassing’s contention that the Fire Chief passed out copies to Board members only, as it doesn’t contain an offer by the Fire Chief or anyone else to provide copies to the public.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges that the SOG was available to the public at an earlier meeting, and that it was read aloud at the May 8, 2018, meeting. Nonetheless, the Board did not comply with its obligations under section 13D.01, subdivision 6. As the Commissioner discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-334889" target="_blank">Advisory Opinion 18-003</a>:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner also notes that a public body cannot fulfill its obligation to make members’ materials available in the meeting room for inspection by the public if the public does not know they are available for inspection. While there is not an affirmative duty to distribute copies to each member of the public in attendance at the meeting, liberally construing the OML to protect the public’s right to full access to the decision-making process of public bodies requires a public body to provide easy access to the materials. Where here, the materials were at a staff work station with other personal materials and not demonstrably available, members of the public could have been intimidated and possibly prevented from exercising their right to review a copy of the materials by being compelled to ask for them. ….</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner again encourages all public bodies to develop ways to guarantee meaningful access to the information required by section 13D.01.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The members of the Greenwood Township Board did not comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members’ materials available to the public at its May 8, 2018, meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: August 1, 2018</p>3476002022-01-18T19:16:09Z266258266297266272<custom:Link urlOnly="true" type="Component" destination="tcm:36-347419" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-07-31T13:34:39ZA data requester asked whether a school district had responded appropriately to several data requests he made, including one for data about himself. The Commissioner opined that the district did not respond appropriately to the requests for public data in these specific circumstances when it did not communicate with the requester in nearly five months, despite the fact that the district knew that some data the requester sought no longer existed. The Commissioner further opined that the district did not respond appropriately to the requester’s request for data about himself because it did not provide him with any data within ten business days, as required by Minn. Stat § 13.04.July 30, 2018; ISD 709, Duluth Public Schools36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Art Johnston asked for an advisory opinion regarding data that Independent School District 709, Duluth Public Schools (District), maintains. Zachary J. Cronen, attorney for the District, submitted comments on behalf of the District.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Johnston sent four data requests to the District on March 2, 2018. The District time stamped the requests as “received” on March 7, 2018. On March 20, 2018, the District emailed Mr. Johnston that it had received the requests and that the requests were “currently in the process of being evaluated and we are gathering data.” Mr. Johnston has not received any communication or any data as of the date of requesting this advisory opinion, despite requests for a status update.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Johnston requested the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>1. All communications that involved ISD709 property sales, or potential property sales, or other utilization of ISD709 real property. This request includes, but [</em>sic<em>] not limited to, emails, letters, memos, texts, analysis, and meeting noted involving ISD709 administration, agents, employees, attorneys, or school board members; and involving any other persons or entities. Dates requested are from January 2010 to the present. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>2. All communications between administration, employees, elected officials, attorneys, agents, or contractors of Independent School No. 709; and officers, employees, contractors, attorneys, affiliates, or agents of Johnson Controls, Inc., concerning the change orders entered into between I.S.D. No. 709 and Johnson Controls, Inc. dated on or about January 2012 (also known as Amendment Project Scopes – Change Order 2) and November 2009 (also known as Amended Project Scopes).</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Dates are from 2009 to the present.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>3. All communications involving administration, employees, elected officials, attorneys, or agents of the Independent School No. 709; concerning responses to data requests and the Minnesota Government Data requests. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Dates are from 2013 to the present.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>4. All communications involving administration, employees, elected officials, attorneys, or agents of Independent School No. 709; concerning former school board member Art Johnston.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Dates are from 2009 to the present. </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did Independent School District 709, Duluth Public Schools, respond appropriately to March 2, 2018, data requests for public data related to District communications about property transactions, responses to data practices requests, and a contract change order?</li> <li>Did Independent School District 709, Duluth Public Schools, respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1</em>: Did Independent School District 709, Duluth Public Schools, respond appropriately to March 2, 2018, data requests for public data related to District communications about property transactions, responses to data practices requests, and a contract change order?</p> <p xmlns="http://www.w3.org/1999/xhtml">A government entity must respond to requests for public data from members of the public in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) An entity must respond by providing the data, notifying the requester that the data are classified such that the requester cannot have access, or informing the requester that the data do not exist.</p> <p xmlns="http://www.w3.org/1999/xhtml">In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. (See Advisory Opinions  <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267656">98-040</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266715" target="_blank">02-020</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267325" target="_blank">04-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267662" target="_blank">05-015</a>.) In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266899" target="_blank">14-003</a>, the Commissioner opined that the University of Minnesota had responded appropriately to a data requester, even though the University had not provided any data to the requester after a period of five months. In that opinion, the requester had asked for access to data related to numerous studies conducted by the University. The University acknowledged his request on the same day he sent it. A month later, the University provided him with an estimate of copy charges and a recap of his remaining data requests. Two weeks later, the University provided the requester with a list of responsive studies (83 studies) so he could determine the order in which he wanted to review them. The Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Based on the complexity of the request and the fact that the University has been in continual communication with Mr. Elliot, it is the Commissioner's opinion that the University has acted appropriately in responding to Mr. Elliott's October 20, 2013, request. It seems reasonable that the request might warrant the time that has elapsed, especially in the context of Mr. Elliott's various other requests.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Here, in response to the Commissioner, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The District notes that for a large portion of Mr. Johnston's data requests, there are no data responsive to his requests. According to the District's Record Retention Policy, correspondence, including emails, have a retention period of three years. See Independent School District 709 Records Retention, at ADM 00900, ADM 02000, available at http://www.isd709.org/district/ departments-3/business­services/finance/record-retention. All of Mr. Johnston's data requests are for communications and all are for a time period beginning more than three years from his requests, including two requests for communications that are over nine years old. Because communications more than three years old are not retained under the Record Retention Policy, there are no data responsive to those portions of Mr. Johnston's requests. Even with those limitations, there are still over 26,000 documents responsive to Mr. Johnston's requests that the District must review.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The District's Chief Financial Officer ("CFO") is responsible for receiving data requests and coordinating the responses to data requests. Here, on March 20, 2018, Jackie Dolentz, the Executive Assistant to the District's former CFO, Doug Hasler, responded to Mr. Johnston acknowledging receipt of the requests. The District thereafter did not respond to Mr. Johnston in writing.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The District has taken steps to ensure that moving forward, all data requests are properly received, acknowledged, and responded to in a timely manner and in accordance with the Minnesota Government Data Practices Act. The District is currently working on reviewing, redacting as necessary, and responding to Mr. Johnston's data requests. The District estimates that it wil1 take 1,300 staff hours to respond to this request. The District will allow Mr. Johnston regular opportunities to review the documents that have been processed as they become available.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In these specific circumstances, once the District determined that certain responsive data no longer existed, it should have notified Mr. Johnston promptly. (See Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267469" target="_blank">06-014</a>.) Also, it appears that the District has identified responsive documents and has decided to provide Mr. Johnston with data on a “rolling” basis. This can be an effective strategy for both entities and requesters when dealing with a large amount of data. However, despite requests for status updates and the passage of nearly five months, the District has not provided Mr. Johnston with any responsive data nor communicated to him that data on at least one of his requests would be forthcoming. Given the lengthy response time in this specific situation, the District’s lack of response is unreasonable because it failed to communicate the reasons detailing the delay.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that requests that result in a large amount of data can present practical challenges for government entities. While entities may be able to identify responsive documents fairly quickly, the time to review and protect not public information can result in lengthy response times. However, entities are still required to respond in a prompt and appropriate manner. Entities can facilitate a timely response by staying in communication with data requesters while their requests are pending. It also allows the requesters to consider whether they would like to change their requests in order to reduce the amount of responsive data; this benefits both the entity and the requester.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner acknowledges and is encouraged by the fact that the District is making more of an effort to improve its compliance with the Data Practices Act.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2</em>: Did Independent School District 709, Duluth Public Schools, respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04?</p> <p xmlns="http://www.w3.org/1999/xhtml">When a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.</em> (Minnesota Statutes, section 13.04, subdivision 3.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has issued a number of opinions about the requirement to respond to data subjects immediately or within ten business days. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267853" target="_blank">03-026</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267820" target="_blank">04-070</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267728" target="_blank">14-006</a>.)  In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-340460" target="_blank">18-005</a>, he wrote, "the County’s obligation under the Data Practices Act to comply immediately or in ten business day with a data subject’s request is clear."</p> <p xmlns="http://www.w3.org/1999/xhtml">The District received Mr. Johnston’s request for communication about him on March 7, 2018, but has not provided Mr. Johnston with any requested data about himself. Therefore, the District did not respond appropriately. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Independent School District 709, Duluth Public Schools, has not responded appropriately to several requests for public data because it has not notified the data requester that certain responsive data do not exist, provided any data to the requester on at least one of the requests, or provided information to explain the delay in responding to the requests.</li> <li>Independent School District 709, Duluth Public Schools, did not respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04, because it did not provide any data to the requester in 10 business days.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: July 30, 2018</p>3474192672632669042665152664082022-01-18T19:16:09Z266258266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-343715" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-06-28T15:18:46ZA member of the public asked whether a state agency had violated the Data Practices Act because it denied him access to the data he requested (school building radon testing/mitigation data). The agency stated that per Minn. Stat. § 13.3805, subdivision 5, data it maintains that “identify the address of a radon testing or mitigation site, and the name, address, e-mail address, and telephone number of residents and residential property owners of a radon testing or mitigation site, are private data on individuals or nonpublic data.” The Commissioner agreed with the agency that data it maintains that identify the location of any radon testing or mitigation site, regardless of the type of property, including school buildings, are nonpublic. However, the same type of data that entities other than the agency maintain are not classified by § 13.3805, subdivision 5.June 28, 2018; Minnesota Department of Health36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">A.J. Lagoe, a reporter for KARE 11 TV, asked for an advisory opinion regarding certain data the Minnesota Department of Health maintains. Lynn Belgea, Responsible Authority Designee for the Department, submitted comments. </p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Lagoe, KARE 11 asked the Department for school building radon data. The Department denied the request pursuant to Minnesota Statutes, section 13.3805, subdivision 5.</p> <p xmlns="http://www.w3.org/1999/xhtml">In his request, Mr. Lagoe wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We believe MDH has erred in their interpretation of MN 13.3805, Subd. 5. In that the statute is clearly focused on the address of *<strong>residential</strong>* property owners and not public/government buildings.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The same data that MDH is withholding is considered public data by individual school districts, but requires hundreds of individual data requests and countless wasted hours by school districts responding to those requests when MDH has the data in one location.</em> [Emphasis provided.]</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the Minnesota Department of Health respond appropriately to a request for school building radon data?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">According to Minnesota Statutes, section 13.3805, subdivision 5: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Data maintained by the Department of Health that identify the address of a radon testing or mitigation site, and the name, address, e-mail address, and telephone number of residents and residential property owners of a radon testing or mitigation site, are private data on individuals or nonpublic data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to Mr. Lagoe, the Department wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Our determination is that the address of a radon testing or mitigation site, listed as a school or other building, is nonpublic data. This would include any data that would enable someone to figure out the address in addition to any direct addresses. For example, some cities and towns have only one or a few school buildings which would make them easy to identify.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, the Department stated that the first clause of section 13.3805, subdivision 5, “does not distinguish between types of buildings”.  Both parties also discussed the legislative history and intent of section 13.3805, subdivision 5. To that point, the Department cited Minnesota Statutes, section 645.16, which provides, “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” The Department wrote, “Section 13.3805, subdivision 5, being unambiguous, must be read as classifying the requested data as nonpublic.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner concurs with the Department. Data maintained by the Department that identify the location of any radon testing or mitigation site, regardless of the type of property, including school buildings, are nonpublic. Both Mr. Lagoe and the Department acknowledged that the same type of data, which are maintained by entities other than the Department, are not classified by section 13.3805, subdivision 5.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Department of Health responded appropriately when it denied a request for school building radon data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: June 28, 2018</p>3437153443452022-01-18T19:16:09Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-343324" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-06-21T14:48:56ZA county asked about the classification of an investigative report about an elected county sheriff. The Commissioner agreed with the County that the sheriff was a public official employee and that “retirement” is a form of “resignation.” As such, all data about the complaint became public when the sheriff retired while the complaint was pending, per Minn. Stat. § 13.43, subdivision 2(f) and (e) (excepting not public data about other individuals).June 21, 2018; Chisago County36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Janet Reiter, Chisago County Attorney, asked for an advisory opinion regarding data that Chisago County (the County) maintains. Marshall Tanick, attorney for the data subject, provided comments on his behalf. </p> <p xmlns="http://www.w3.org/1999/xhtml">The County provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Chisago County received a complaint against elected Sheriff Richard "Rick" Duncan and initiated an external investigation into the complaint. The complaint was investigated by attorney Kristi A. Hastings. On April 26, 2018, Hastings issued her investigative report to Chisago County. On April 26, 2018, Sheriff Duncan submitted his written notice of retirement to Chisago County to be effective May 4, 2018….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On April 27, 2018, Chisago County received a data request from KSTP requesting the "investigation into complaint, disciplinary action, finding of investigation" regarding Duncan.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data in an investigative report about a complaint against a County Sheriff?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml"><br /> Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. </p> <p xmlns="http://www.w3.org/1999/xhtml">Generally, only the existence and status of a complaint or charge against an employee are public data, unless there is a final disposition of disciplinary action. (See Section 13.43, subdivision 2(a)(4) and (5).) For employees who are “public officials,” however, all data relating to a complaint or charge are public if certain conditions are met. (See section 13.43, subd. 2(e) and (f).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data relating to a complaint or charge against an employee identified under paragraph (e), clause (4), are public only if:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending.</em> (Section 13.43, subd. 2(f)(1).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Local public officials include the chief administrative officer; directors of departments, divisions, bureaus, or boards of a county with a population of more than 5,000 (or cities with more than 7,500 residents); the top three highest paid positions in a city or county with over 15,000 residents pursuant to Minnesota Statutes, section 471.701; and certain school district employees. (See section 13.43, subd. 2(e)(4)(i-iv).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote: “Whether the data is governed by [section] 13.43, hinges upon whether the Sheriff, as an elected official, is deemed an employee, or not.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has consistently opined that entities must determine whether elected officials are “employees” for purposes of the Data Practices Act. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267573" target="_blank">95-041</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267335" target="_blank">03-011</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267742" target="_blank">02-013</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267669">01-039</a>.) In an unpublished Minnesota Court of Appeals case, the Court agreed with the Commissioner’s previous opinions, “[a]llowing governmental units to decide whether their elected officials are employees also comports with the fundamental purpose of the MGDPA.” <em>Krout v. City of Greenfield</em>, No. A11-1200, WL 2012 1253090 (Minn.Ct.App. April 16, 2012). If an elected official is not an “employee” for purposes of the Data Practices Act, then data about him are presumptively public.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote that it “believes the Sheriff is an employee, and more specifically, a ‘public official.’” </p> <p xmlns="http://www.w3.org/1999/xhtml">The data subject wrote that he, “believes that the County is probably correct on this point [that the data subject is an employee]. For the purposes of the analysis, he may be deemed an “employee,” and, therefore, the investigative data may be covered by section 13.43.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The next question is whether the data subject was a “public official,” while employed at the County. The County wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As an employee, the Sheriff is a "public official" under Minn. Stat. [section] 13.43, Subd. 2(e)(4)(ii) and (iii) as noted by the Sheriff’s salary and position as the head of a department. In Chisago County, the Sheriff is one of the employees whose salary is posted on the County's website to comply with Minn. Stat. §471.701 and identified by County Personnel Policy as a Department Head, responsible for overseeing the Sheriff’s Office. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The data subject argued that he is not a public official first, because including his position as one of the three highest paid was “premature and erroneous,” as a half-year employee this year and because he is not a department head. However, the Commissioner respectfully disagrees. The County provided four years of salary postings and “Sheriff” is included on all of them (all during the tenure of the data subject). Moreover, County also stated that the position of Sheriff is considered a department head within the County. Thus, under the plain language of the law, the data subject is a local public official.  </p> <p xmlns="http://www.w3.org/1999/xhtml">The next question is whether the Sheriff “resigned” while the complaint or charge was pending, when he retired.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The legal distinction between a resignation and retirement for purpose of the classification of data resulting from an investigation of an employee does not appear to have been previously addressed. The practical implications of the Sheriff’s retirement is that as of May 4, 2018, the Sheriff is no longer available for service, consistent with the impact of a resignation.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The word “resign” is not defined in section 13.43. Words and phrases not defined in statute are to be interpreted according to their common and approved usage. (See Minnesota Statutes, section 645.08.) The dictionary definition of “resign” is “to give up one's office or position.” (Merriam-Webster.com. 2014. http://www.merriam-webster.com (June 2018).) While there may certainly be a distinction between resignation and retirement for human resources or personnel purposes – as the data subject argues – in a data practices context, it seems that retirement is a form of resignation. </p> <p xmlns="http://www.w3.org/1999/xhtml">On April 26, 2018, the data subject stated his intention to retire on May 4, 2018, and subsequently retired. It is the Commissioner’s opinion that the Sheriff “resigned” on May 4, 2018. Therefore, if the complaint or charge was still pending on that date, when the Sheriff actually retired, all data related to the complaint or charge became public (except for private data on other employees or data that would jeopardize an active investigation). </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner notes that at the time of the April 27, 2018, data request from KSTP, the data in the investigative report were private personnel data, as the data subject had not yet resigned. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The data in an investigative report about a County Sheriff who is a public official employee and who resigns as a result of retirement while a complaint or charge is pending are public, except for otherwise private data on other individuals. </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: June 21, 2018</p>3433242672242665162672102668732667692022-01-18T19:16:07Z266258342909266301<custom:Link urlOnly="true" type="Component" destination="tcm:36-342910" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-06-15T20:11:40ZA City asked if it was required to provide access to a sealed criminal record pursuant to 5 USC § 9101. The language in that provision allows military recruiters to access certain records maintained by state and local law enforcement when the expunged records remain available for background checks. Here, the case against the subject of the records was ultimately dismissed and therefore, because there were not any record of a “conviction,” the records are not available for background checks under Minn. Stat. § 609A.03. Therefore, the City could not disclose the sealed records to the military recruiter. June 15, 2018; City of New Prague36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Scott J. Riggs, attorney for the City of New Prague (City), asked the Commissioner to issue an advisory opinion about data that the City police department maintains. Tim Warnemunde, attorney for the data subject, provided comments on behalf of his client.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In late 2017, the [Police] Department’s responsible authority received a written request for data. The request for data included the following:</em></p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li><em>DD Form 369, Dec. 2014 – Police Record Check; and</em></li> <li><em>Standard For 86 – Questionnaire for National Security Positions – Authorization for the Release of Information</em></li> </ol> <p xmlns="http://www.w3.org/1999/xhtml"><em>Copies of the documents received by the Department are attached for your review.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The requests sought police records related to M.B. The person requesting the information was identified in the request at [sic]… a U.S. Navy Recruiter….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Based on the terms of the Standard Form 86, the requestor was relying on obtaining the requested data to carry out the powers and duties contained in 5 U.S.C. section 9101. In relevant part, that statute provides that local law enforcement agencies shall provide “criminal history record information” which includes “records of a State or locality sealed pursuant to law if such records are accessible by the State and local criminal justice agencies for purpose of conducting background checks.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to this request, the City provided the requester with a summary of contacts the data subject had with the police department. The summary included an entry for an arrest for fifth degree drug sales, under Minnesota Statutes, section 152.025, subdivision 1, which occurred when the subject was a juvenile. </p> <p xmlns="http://www.w3.org/1999/xhtml">In March of 2018, the police department received a court order sealing/expunging the record of the arrest. The City expects to receive a request similar to the one it received in early 2017 and sought clarification on the effect of the expungement order on the records the City maintains.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Does 5 U.S.C. section 9101 require the City of New Prague to disclose law enforcement records sealed under Minnesota Statutes, Chapter 609A to a military recruiter?</p> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml"><br /> Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, Chapter 609A governs the process for and the effect of an expungement order on access to criminal records. (See also Minnesota Statutes, Chapter 260B, regarding expungement of juvenile delinquency records.) The Chapter limits who may have access to sealed records and under which conditions:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Notwithstanding section 13.82, 13.87, or any other law to the contrary, if the court issues an expungement order it may require that the criminal record be sealed, the existence of the record not be revealed, and the record not be opened except [under certain circumstances].</em> (Minnesota Statutes, section 609A.03, subdivision 5(d).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, when a court seals criminal records, those records may only be accessed as provided under the court order, Chapters 609A and 260B, or as otherwise authorized in law. Though the records continue to exist, they are no longer subject to the Data Practices Act and consequently, any prior data classifications under that law do not impact access to those records. Moreover, the rights granted to data subjects under the Data Practices Act – including the right to access data about themselves in ten business days and the right to give informed consent to a third party – no longer apply. (The effect of an expungement order is similar to the effect of Minnesota Statutes, section 13.393, which relates to certain types of records created by an attorney acting in a professional capacity for a government entity. That provision essentially removes the records from the Data Practices Act and provides that access to attorney records is governed instead, by the Minnesota Rules of Court. See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267561" target="_blank">01-075</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266767" target="_blank">03-003</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267516" target="_blank">05-009</a>.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota law allows access to records sealed on January 1, 2015, and later, in certain circumstances, including:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(3) an expunged</em> record of a conviction <em>may be opened for purposes of evaluating a prospective employee in a criminal justice agency without a court order;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(4) an expunged</em> record of a conviction <em>may be opened for purposes of a background study under section 245C.08 unless the commissioner had been properly served with notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner of human services;</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(5) an expunged</em> record of a conviction <em>may be opened for purposes of a background check required under section 122A.18, subdivision 8, unless the court order for expungement is directed specifically to the Professional Educator Licensing and Standards Board or the licensing division of the Department of Education.</em> (Section 609A.03, subd. 7a(b)(3)-(5).) (Emphasis added.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Federal law provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Upon request by a covered agency, criminal justice agencies shall make available all criminal history record information regarding individuals under investigation by that covered agency, in accordance with Federal Investigative Standards /jointly promulgated by the Suitability Executive Agent and Security Executive Agent, for the purpose of—</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(A) determining eligibility for—</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(iii) acceptance or retention in the armed forces.</em> (5 USC 9101(b)(1)(A)(iii).)</p> <p xmlns="http://www.w3.org/1999/xhtml">That section also defines “criminal history record information” as:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations [sic], or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system.</em> The term includes those records of a State or locality sealed pursuant to law if such records are accessible by State and local criminal justice agencies for the purpose of conducting background checks. (5 USC 9101 (a)(2).) (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The subject of the records raised the possibility that Minnesota Statutes, section 152.18 (certain first time drug offenders; certain marijuana offenses) applies to the records at issue and therefore, section 609A.03, subdivision 6, controls the outcome here. However, section 152.18 only applies to <em>possession</em> crimes under section 152.025, subdivision 2, and the records expunged in the two court orders at issue here involve a <em>sales</em> crime, under subdivision 1 of that section. Thus, sections 152.18 and 609A.03, subd. 6, do not apply to the records here. </p> <p xmlns="http://www.w3.org/1999/xhtml">The district court’s expungement order for Le Sueur County states that the order is sealing/expunging records under section 609A.02, subd. 3, for “5th Degree drugs-sale-marijuana in violation of Minnesota Statutes Section 152.025, Subd. 1(a).” (The records are subject to a Scott County expungement order, as well, which is materially the same.) The Le Sueur County order further states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Petitioner’s request for sealing/expunging of records is granted. All official records, including all records relating to the arrest, indictment or complaint, trial and dismissal, shall be sealed by the agencies indicated in paragraph 4 [sic] below and the existence not disclosed without a court order, except as authorized by law.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Paragraph 3 of the order lists New Prague City Attorney and New Prague City Police Department.</p> <p xmlns="http://www.w3.org/1999/xhtml">The subject of the records provided the following additional facts, “Taking into account the facts of the case, and [the data subject’s] good record, [the data subject] was given a stay of adjudication. [The data subject] satisfied all terms of the stay and the criminal case against him was <em>dismissed</em>.” (Emphasis added.)</p> <p class="MsoNormalCxSpFirst" xmlns="http://www.w3.org/1999/xhtml">Under the federal provision, the Navy is allowed to access sealed records in Minnesota to determine eligibility to serve in the armed forces when those sealed records are accessible to local law enforcement agencies to conduct background checks. Minnesota law allows criminal justice agencies to access “criminal conviction records” to conduct certain background studies. Here, the Court stayed adjudication and once the subject of the records fulfilled the conditions of the stay, the case was dismissed. Thus, he was never “convicted” and his records are not accessible in Minnesota for background checks by criminal justice agencies. Therefore, the City cannot disclose the sealed records pursuant to 5 USC section 9101.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">5 U.S.C. section 9101 does not require the City of New Prague to disclose law enforcement records sealed under Minnesota Statutes, Chapter 609A to a military recruiter, because Minnesota Statutes, section 609A.03, subd. 7a, does not allow criminal justice agencies to access sealed records to conduct background checks unless the individual is convicted of a crime. </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: June 15, 2018</p>3429102022-01-18T19:16:07Z266258266272266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-340647" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-05-23T16:08:40ZA member of the public asked whether a University had violated the Data Practices Act because it had not provided him with access to the data he requested (public personnel data on three employees) as of the date of his opinion request, which was two months after he asked for the data. In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. Here, he opined that given the facts of this specific data request, including the type and amount of data requested, the University’s response was not timely. May 23, 2018; University of Minnesota36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Mark Krampf asked for an advisory opinion regarding certain data the University of Minnesota maintains. Susan McKinney, responsible authority for the University, submitted comments. </p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Krampf, on February 17, 2018, he submitted a request to the University for public personnel data about three University employees. Most of the data Mr. Krampf requested are listed in Minnesota Statutes, section 13.43, subdivision 2(a), such as gross pension, value &amp; nature of any fringe benefits, final disposition of any disciplinary action, work location, badge number, etc.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Krampf stated to the Commissioner that as of April 18, 2018, the University had not provided him with the data. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the University of Minnesota respond appropriately to a February 17, 2018, data request?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to section 13.03, when a government entity receives a data request from a requester who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, an entity must provide the data, advise that the data are classified such that the requester cannot have access, or inform the requester that the data do not exist.</p> <p xmlns="http://www.w3.org/1999/xhtml">Also, pursuant to section 13.03, subdivision 1, “[t]he responsible authority in every government entity shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In previous advisory opinions, the Commissioner has stated that a prompt, reasonable response is relative to the volume of data requested. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267963">13-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267469">06-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267662">05-015</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267325">04-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267700">97-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267434">95-006</a>.) Here, Mr. Krampf asked for public data on three employees. </p> <p xmlns="http://www.w3.org/1999/xhtml">In her comments, Ms. McKinney wrote, “[t]he information Mr. Krampf has requested was provided to him on May 2, 2018.  Additional information based on an email from Mr. Krampf on May 16, 2018 was provided to him on May 21, 2018.”   </p> <p xmlns="http://www.w3.org/1999/xhtml"><font face="Open Sans, Helvetica, Arial, sans-serif">Given the facts of this specific data request, including the type and amount of data requested, the University’s response to Mr. Krampf was not timely.</font><span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The University of Minnesota did not respond appropriately to a February 17, 2018, data request.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: May 23, 2018</p>3406472669042670492022-01-18T19:16:07Z266258266262266297266272<custom:Link urlOnly="true" type="Component" destination="tcm:36-340460" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-05-22T12:53:33ZA data subject asked if a county responded appropriately to a data request when it failed to comply within ten business days. The Commissioner concluded that Minn. Stat. § 13.04, subdivision 3, is clear: entities must comply with data subject requests within ten business days. The request resulted in almost 3,000 emails and, as of the date of the opinion, the County had failed to provide any emails to the data subject. The Commissioner acknowledged the challenge in producing all of the data within the strict time limit, but also noted that the statute does not allow for additional time in mitigating circumstances.May 21, 2018; Carver County36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Noah McCourt asked for an advisory opinion about certain data that Carver County (County) maintains. Thomas W. Haines, Assistant Carver County Attorney, submitted comments on behalf of the County.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. McCourt provided a summary of the facts. On March 14, 2018, Mr. McCourt made a request to the Carver County Administrator for the following data: “[a]ny and all correspondence, documents, letters, electronic messages, memoranda, social media communications, telephone messages, and any other forms of data which includes the name Noah McCourt.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. McCourt further wrote, “Carver county [sic] has failed to meet the 10 day stipulation as cited from the MN Data Privacy act [sic] and in fact they have not responded to the request at all.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did Carver County respond appropriately to a March 14, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">When a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.</em> (Minnesota Statutes, section 13.04, subdivision 3.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has issued a number of opinions about the requirement to respond to data subjects immediately or within ten days. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267853" target="_blank">03-026</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267820" target="_blank">04-070</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267728" target="_blank">14-006</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In its letter to the Commissioner, the County wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Mr. McCourt’s foregoing claim [that the County did not contact him about his request] is demonstrably false. In fact, the Carver County Attorney’s Office has exercised nothing but good faith in attempting to comply with Mr. McCourt’s extensive data request.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The County argued that Mr. McCourt’s request was “patently distinguishable from the vast majority of typical data requests” because the Chief Deputy County Attorney, who is the data practices Responsible Authority for the County in these circumstances, was also the assigned prosecutor in a criminal matter involving Mr. McCourt. Relying on <em>Minnesota Rules of Professional Conduct</em> 4.2, Communication with Persons Represented by Counsel, the Chief Deputy determined that he could not reply directly to Mr. McCourt, because Mr. McCourt was represented by counsel in the criminal matter. </p> <p xmlns="http://www.w3.org/1999/xhtml">Based on this reasoning, beginning on March 26, 2018, the Chief Deputy sent six emails regarding the data request to Mr. McCourt’s attorney for the criminal case. Specifically, he noted that the County identified about 3,000 responsive emails and that before providing the emails, each one would be reviewed to determine if it contained any not public data about others. He also noted that the County was implementing new software to respond more effectively to data requests and that installation and training were causing some of the delay. On April 24, 2018, the Chief Deputy determined that there would be a conflict of interest for him to review the documents and assigned the task to another attorney at the County. At a hearing for the criminal matter, Mr. McCourt’s attorney stated that she represented him in the criminal matter and it would not be “proper or appropriate for [her] to be dealing with the data practices portion.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot opine on the proper application of the ethical rules governing the conduct of attorneys; that is strictly within the purview of the Courts. For further guidance, the Commissioner refers the County to the comments to Rule 4.2, in particular Comment 4.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, notwithstanding the attorney conduct concerns, the County’s obligation under the Data Practices Act to comply immediately or in ten business day with a data subject’s request is clear. (The Commissioner has also previously opined that the existence of litigation between a data requester and an entity does not relieve the entity of its data practices responsibilities. See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267779" target="_blank">96-038</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267700" target="_blank">97-005</a>.) As the Commissioner noted in <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-268014" target="_blank">Advisory Opinion 03-030</a>: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner acknowledges that circumstances can arise that make it more difficult for government entities to fulfill their duties under Chapter 13. Nevertheless, the District was obligated, per section 13.04, subdivision 3, to provide X with access to the data requested within ten working days. The statute does not provide additional time for mitigating circumstances.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Here, Mr. McCourt asked for data about himself on March 14, 2018. As of April 18, 2018, the date the Commissioner received Mr. McCourt’s opinion request, Mr. McCourt had not received any data from the County. (The County subsequently contacted Mr. McCourt on May 18, 2018, with an update but, to the Commissioner’s knowledge, has not yet provided any data.) </p> <p xmlns="http://www.w3.org/1999/xhtml">The issue of responding to requests that result in a large amount of emails is a challenging one. Though the amount of data created and maintained by government is ever-increasing due to the transition to electronic and digital records, the strict time limit to provide access to data about data subjects remains the same. The Commissioner acknowledges that entities are sometimes in the difficult position of being unable to comply fully – by providing <em>all</em> of the data – within ten business days (though entities can certainly provide <em>some</em> of the data within ten business days). </p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner has a note regarding the County’s access policies required by Minnesota Statutes, section 13.025. The County’s current access policy for data subjects identifies the Chief Deputy County Attorney as the Responsible Authority for offices not otherwise designated by statute. Thus, given the Chief Deputy’s prosecutorial responsibilities, it seems likely that situations similar to this one will arise in the future. The Commissioner encourages the County to revisit its access policies and procedures so that any issues related to representation or apparent conflicts of interest do not interfere with the statutory time limits for responding to requests. </p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Carver County did not respond appropriately to a March 14, 2018, data request from a data subject because it did not provide access to the data within ten business days, pursuant to Minnesota Statutes, section 13.04.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: May 21, 2018</p>3404602667622672632670492673082664792670122022-01-18T19:16:07Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-335888" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-04-16T19:35:35ZA school district asked about the classification of data it maintained about a School Resource Officer (SRO) employed by a city and assigned to the District. Based on Advisory Opinion 97-030, the Commissioner opined that the definition of personnel data in Minnesota Statutes, section 13.43, includes government data maintained by one government entity about employees employed by another government entity, when employees are working in their official capacities. Therefore, data about the SRO maintained at the District are classified as personnel data and while the existence and status of a complaint against the SRO are public, any other data about a complaint or charge against the SRO is private at the District.April 16, 2018; School District X36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Maggie R. Wallner, attorney for a school district (District), asked for an advisory opinion regarding data that the District maintains pursuant to Minnesota Statutes, Chapter 13, the Minnesota Government Data Practices Act (Data Practices Act). </p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided a summary of the facts.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he School District received, from parents of a student, written complaints against a number of school employees, as well as a school resource officer (the “Officer”). The School District retained a law firm to conduct an investigation into the allegations.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Notably, the Officer is not an employee or independent contractor of the School District, but rather is employed by the City as a member of its police department. The Officer declined to be interviewed in the School District’s investigation, and the Police Chief informed the School District that an investigation would be conducted by the City if it received a complaint from the parents. The parents declined to submit a complaint to the City.</em></p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of data related to a complaint by a parent about a School Resource Officer maintained by a school district? </p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals 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.  </p> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act defines “personnel data” as: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[G]overnment data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The existence and status of a complaint against an employee are always public. Unless there is a final disposition of disciplinary action, the subject and the nature of the complaint are private. (Section 13.43, subdivision 2(a)(4) and (5).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267685" target="_blank">Advisory Opinion 97-030</a>, a county employee complained about the work environment in an office that was co-located with a city department. In the subsequent investigation, the county interviewed both city and county employees. The county then asked the Commissioner about the classification of the data that the county maintained about city employees. The Commissioner opined: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The data about City and County employees contained in the documents were collected, created, and are maintained by Blue Earth County because those individuals are or were employees of a government entity (in this case, either the City or the County). Therefore, those data in the possession of the County are classified pursuant to Section 13.43, personnel data….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>***</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As discussed above, any data about an individual collected by a government entity because that individual is or was an employee of a government entity, are classified per Section 13.43. In this case, the data about City Employee A were collected by the County because City Employee A is an employee of the City of Mankato, who, because of the operation of a joint County/City Department, works with County employees. Therefore, the data about City Employee A in the possession of Blue Earth County are classified per Section 13.43.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The police department and the District signed a Memorandum of Understanding (MOU) prior to the officer’s assignment at the District. It provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The School Resource Officer is a licensed peace officer that will be serving the [redacted] Public schools. This role is vital to the security, safety, and education within the public school system, therefore the partnership between the City of [redacted] Police Department and ISD [redacted] is key in order to implement effective policing in the school system.</em> [Redactions provided.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The MOU also specifies that the school resource officer (SRO) reports to the Chief of Police and the Chief and the Superintendent will have meetings to discuss performance and expectations.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its opinion request, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>T</em><em>he Officer is not an employee of the School District; he was not performing services on a voluntary basis; and he was not acting as an independent contractor. Rather, he is employed by the City and assigned to the School District.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>However, the definition of personnel data, as highlighted above, applies to data on individuals maintained because the individual is an employee of <strong>a</strong> government entity. The Officer is indeed an employee of a government entity; it is just not the entity that maintains the data in question.</em> [Emphasis provided.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the District. The District collected the data about the SRO because the SRO is an employee of the police department, who also works within the District. This is consistent with the definition of personnel data in section 13.43 and Advisory Opinion 97-030.</p> <p xmlns="http://www.w3.org/1999/xhtml">Because the District cannot discipline the SRO, there can be no final disposition of disciplinary action. Thus, the only public data about the complaint against the SRO that the District maintains, are the existence and status. The parents were invited to submit their complaint regarding the SRO to the police department, where additional personnel data might have become public if certain conditions had been met, but they declined.  </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner encourages school districts and police departments to consider the data practices implications when assigning SROs to districts and to include data practices responsibilities and expectations in MOUs or other contracts between the parties. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that the application of section 13.43 depends upon whether data are maintained <em>because</em> an individual is an employee of a government entity. When an individual’s identity as a government employee is unconnected to the collection or creation of data, (i.e., an employee is acting in his/her personal capacity), the data are not personnel data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267479" target="_blank">Advisory Opinion 07-004</a>, names of government employees corresponding with their elected officials in their individual capacities are not personnel data accessible to the public.) </p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Data related to a complaint by a parent about a School Resource Officer employed by a police department and maintained by a school district at which the SRO is assigned, are classified by Minnesota Statutes, section 13.43.</p> <p class="MsoNormal" style="margin-left: 0.5in;" xmlns="http://www.w3.org/1999/xhtml"> </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: April 16, 2018</p>3358882665162665872022-01-18T19:16:05Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-334889" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-04-05T15:20:02ZA member of the public asked whether a City Council had violated the Open Meeting Law by holding a meeting outside the geographic boundaries of the body, not providing a copy of members’ materials, and eating dinner together.April 5, 2018; St. Anthony Village City Council36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Nancy Robinett asked for an advisory opinion regarding the conduct of the St. Anthony Village City Council (Council) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Jay Lindgren, City Attorney, responded on behalf of the Council.</p> <p xmlns="http://www.w3.org/1999/xhtml">According to Ms. Robinett, on January 11-12, 2018, the Council held what it described, in part, as a “Goal Setting Session.” The meeting was held at the Marriott Northwest Hotel in Brooklyn Park, MN (outside the legal boundaries of St. Anthony Village).</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Robinett stated to the Commissioner that “all materials relevant to the … meetings…were not available to the public.”</p> <p xmlns="http://www.w3.org/1999/xhtml">According to Ms. Robinett:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The attendees on the second day had a “pyramid” document that they were discussing and working on; I asked the facilitator for a copy of this so I could follow along. He gave me a copy of this single sheet, after some reluctance, but it was an older 2017 copy, as I saw a newer copy with 2018 written on it, in front of the invited attendees….</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>***</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At the end of the first day, a dinner was scheduled for attendees …. I understand that a number of attendees, which I believe included council members and the mayor, were scheduled to spend the night in the hotel.</em></p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held meetings on January 11 and 12, 2018, in Brooklyn Park, MN?</li> <li>Did the members of the St. Anthony Village City Council comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members materials available at its January 11 and 12, 2018, meetings?</li> <li>Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they met for dinner in a hotel dining room, the evening of the January 11, 2018, meeting?</li> </ol> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a city is a public body subject to the law. (Minnesota Statutes, 13D.01, subdivision 1(b)(4).)</p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>'Meetings' subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</em> Moberg v. Independent School District No. 281<em>, 336 N.W.2d 510, 518 (Minn. 1983) (Moberg).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies.” <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 6 (Minn.1983) (<em>St. Cloud Newspapers</em>). And that the purposes behind the law “are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.” (Footnote omitted.) <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002).</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held meetings on January 11 and 12, 2018, in Brooklyn Park, MN?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court previously considered whether a school board violated the OML when it held a meeting 20 miles outside of the school district. The Court held: “To meet this statutory requirement [that meetings of public bodies shall be open to the public] it is essential that such meetings be held in a public place located within the territorial confines of the school district involved.” <em>Quast v. Knutson</em>, 150 N.W.2d 199, 200 (Minn. 1967) (<em>Quast</em>). Based on the holding in that case, the Commissioner has previously opined that all public bodies must hold their meetings within the territorial confines of their jurisdictions. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267613" target="_blank">Advisory Opinions 06-012</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-266653" target="_blank">08-034</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In her opinion request, Ms. Robinett wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I am unaware of any reason why the meetings of the January 11-12 could not and should not have been held within the borders of the city of St. Anthony, in keeping with Minnesota law. Comments have been made by the mayor of St. Anthony that the long-standing practice of holding this annual meeting outside the borders of St. Anthony is approved by him, and is likely to continue.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The City Manager described the meeting in this way:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The City of St. Anthony City Council has had a tradition of holding its annual goalsetting session in a location outside City Hall in order to reflect on and organize its goals and strategies in an environment free from distractions and interruptions.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to the Commissioner, the Council wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Holding the St. Anthony annual goal-setting session outside City limits does not violate the Open Meeting Law…. Ms. Robinett contends that</em> Quast <em>creates a bright-line rule that every meeting of every public body must be held within the territorial jurisdiction of that body, regardless of circumstances. </em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council then provided a number of arguments to support its position that <em>Quast</em> does not create a bright-line rule and that public bodies should instead, employ a balancing test. However, the Commissioner respectfully disagrees with the Council’s arguments and relies on the clear public policy underlying the Supreme Court’s holding in <em>Quast</em> and past opinions applying that case to all public bodies.</p> <p xmlns="http://www.w3.org/1999/xhtml">Requiring public bodies to hold meetings within their jurisdictions accomplishes the central purpose of the OML, which is to allow the public to observe the decision-making process of its governing bodies. Here, the Council spent two days talking about the long-term vision for the City and prioritizing goals and action steps. They also heard presentations from consultants and staff on issues related to finance, emergency services, and engineering, amongst other topics. The OML seeks to facilitate open, public access to these types of Council discussions in a manner accessible to its constituents. By holding the meetings outside of the Council’s jurisdiction, the Council effectively removed themselves from the people that they serve, thus undermining the public policy intent of the OML. Per the direction of the Supreme Court, the Commissioner interprets the OML in favor of public access.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that this interpretation of Quast is consistent with <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267172" target="_blank">Advisory Opinion 13-009</a>, which concluded that when the conditions of Minnesota Statutes, section 13D.02, subdivision 1(3), are met, public body members may “attend” meetings via interactive television even when they are outside of the geographic boundaries of the public body. That provision requires at least one member of the public body to be physically present at the regular meeting location. It also requires that members of the public be able to see and hear all testimony, discussion, and votes. So, in essence, a meeting via interactive TV is still a meeting in the regular meeting room of the public body and within the territory of the public body. There are similar conditions for meetings by telephone. (See Minnesota Statutes, sections 13D.015 and 13D.021.)</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> Did the members of the St. Anthony Village City Council comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members materials available at its January 11 and 12, 2018, meetings?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 6, requires that at least one copy of any printed materials relating to the agenda items that are distributed at or before the meeting to all members of the governing body or are available to all members in the meeting room, “shall be available in the meeting room for the public to review.”</p> <p xmlns="http://www.w3.org/1999/xhtml">In her opinion request, Ms. Robinett wrote that the public materials had not been made available at the meeting. On the second day, she asked one of the meeting facilitators for a copy of a document and was provided a document that was similar to, though not exactly the same as, the one being reviewed by the Council members.</p> <p xmlns="http://www.w3.org/1999/xhtml">In a letter to the Commissioner, the City Manager wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Staff prepared and brought to the goal-setting session a copy of all the materials that would be reviewed and discussed during the meeting. I kept the copy near me on top of the front table and sat in front of a large placard with my name on it, in case anyone asked to view the copy of the materials. No one did…. As a matter of fact, we had two extra copies.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council’s attorney wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The statute does not impose an affirmative duty to distribute a copy of these materials, or to ask each member if they would like to inspect the materials. It only requires that a public body make the materials “available for inspection.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Robinett wrote that, given the configuration of the meeting room, it was not clear to her that the required packet was available. She stated, “[the City Manager] may well have had extra materials at his personal seating area. However, there were jumbles of materials at many seats, which were all clearly personal seating areas….”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council stated that the materials were in the meeting room and would have been provided, if requested. However, when Ms. Robinett asked to see the “pyramid document” that the Council members were reviewing and discussing, she was not given a copy of the same document. The City Manager wrote, “Although the copy provided unintentionally had ‘2017’ written on it, it was in all other respects identical to the ‘2018’ version the group was reviewing.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council stated that it had two extra copies of “all the materials that would be reviewed and discussed during the meeting.” If that had been the case, it is not clear why Ms. Robinett was provided with a document that was different in any respect from the one the Council members had. Secondly, Ms. Robinett would not have been able to verify that the document she had and the one members had was, “in all other respects identical,” because she did not have a copy of the 2018 pyramid with which to compare her copy. Even if the documents were nearly identical, providing a substantially similar document does not fulfill the requirement in section 13D.01, subd. 6. Thus, the Council did not comply with the OML requirement regarding members’ materials.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that a public body cannot fulfill its obligation to make members’ materials available in the meeting room for inspection by the public if the public does not know they are available for inspection. While there is not an affirmative duty to distribute copies to each member of the public in attendance at the meeting, liberally construing the OML to protect the public’s right to full access to the decision-making process of public bodies requires a public body to provide easy access to the materials. Where here, the materials were at a staff work station with other personal materials and not demonstrably available, members of the public could have been intimidated and possibly prevented from exercising their right to review a copy of the materials by being compelled to ask for them. The fact that the meeting was not in a familiar location also weighs in favor of a more proactive approach by the Council.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 3:</strong> Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they met for dinner in a hotel dining room, the evening of the January 11, 2018, meeting?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has held that chance or social gatherings of a quorum or more public body members are not “meetings,” subject to the OML. (See, St. Cloud Newspapers v. Dist. 742 Com. Schools, 332 NW 2d 1, 7 (Minn. 1983.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Robinett wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I request an advisory opinion on whether the practice of holding a scheduled evening social dinner for an entire public body, following by a scheduled overnight stay together for that entire public body at a hotel, strains the exception to the open meeting law for chance or social gatherings, or even actually violates the open meeting law. The evening social dinner was listed as an agenda item, as a 6:30 p.m. dinner, and presumably a quorum of the city council was present at this dinner. The dinner was not held in the conference room in which the day’s meeting was held, but rather in a hotel dining area. This area was available only to the invited meeting attendees, for whom the city paid for dinner, and not general public. There was no notice given during the day one session inviting the public to this dinner session, even though it was listed on agenda. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>***</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I don’t know whether a quorum of the public body as a group discussed or received information pertinent to city business, as I was not at this dinner meeting….. However, the fact that this meeting was listed as an agenda item and yet was not available to the public, means the public simply has lost its right to be informed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In his letter to the Commissioner, the City Manager wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Council Members are aware of the quorum and official city business elements of a “meeting” subject to the law. For this reason, City Council Members were each seated at a separate table in order to prevent formation of a quorum. City business and information were not discussed. As far as I was able to observe from my place at dinner, Council Members did not circulate between tables, and I did not observe any two Council Members talking together during dinner. Similarly, I have no reason to believe, based on the intent of the meeting, the Council Members’ training and what I observed, that any official city business was discussed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The dinner was in the general dining area of the hotel’s public restaurant. To my knowledge, no member of the public asked if they could attend the dinner, and no member of the public was informed by any City official that they would not be allowed to attend the dinner. I observed Ms. Robinett leave the goal-setting session before we broke for dinner. …..</em> [Footnote omitted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">Despite the fact that the dinner was listed on the agenda, the City Manager made clear in his comments that the Council members took specific measures to ensure that they would be in compliance with the OML. The members sat at different tables in a public dining room. No official business was discussed. The City Manager did not see any members speaking to one another. Ms. Robinett did not attend the dinner and thus was unable to observe the conduct of the Council members. Based on the City Manager’s comments and observations, it seems that a quorum of members did not discuss, decide, or receive information as a group related to official business. Therefore, the dinner was a social gathering and not a “meeting” subject to the OML and, the Council did not violate the OML.</p> <p xmlns="http://www.w3.org/1999/xhtml">While members of public bodies may legally attend social gatherings together, the Commissioner again notes that the occurrence of this particular social gathering appears to have arisen exclusively as the result of Council holding a multi-day goal-setting meeting outside of the jurisdiction in violation of the OML. The Commissioner reiterates that such meetings should be held within the jurisdiction and cautions the Council to not conduct meetings at social events wherever they may occur. As always, public bodies must be mindful of even the appearance of impropriety when dining together as a group.</p> <p xmlns="http://www.w3.org/1999/xhtml"><br /></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The members of the St. Anthony Village City Council did not comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held meetings on January 11 and 12, 2018, in Brooklyn Park, MN.</li> <li>The members of the St. Anthony Village City Council did not comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members materials available at its January 11 and 12, 2018, meetings.</li> <li>The members of the St. Anthony Village City Council complied with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they attended dinner in a hotel dining room, the evening of the January 11, 2018, where they did not sit together or discuss, decide, or receive information related to official business as a group.</li> </ol> <p class="MsoNormal" style="margin-left: 0.5in;" xmlns="http://www.w3.org/1999/xhtml"> </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: April 5, 2018</p>3348892663462022-01-18T19:16:05Z266258266301327537266297<custom:Link urlOnly="true" type="Component" destination="tcm:36-327536" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-02-26T13:47:40ZA police department asked about the classification of records involving juveniles. The Commissioner opined that per Minnesota Statutes, section 260B.171, when a juvenile is or may be delinquent or is or may be involved in criminal acts and the proceedings are not open to the public, records of juveniles are private. Identifying information about juvenile witnesses and victims are classified by Minnesota Statutes, section 13.82, subd. 17, as private, when the law enforcement agency has made the required determinations.February 26, 2018; City of Blue Earth36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Faribault County Attorney’s office asked for an advisory opinion about certain data that the City of Blue Earth Police Department (Department) maintains. The Commissioner offered the data requester, KSTP, an opportunity to comment. KSTP did not provide comments. </p> <p xmlns="http://www.w3.org/1999/xhtml">The County Attorney provided a summary of the facts. A reporter from KSTP made a request to the Blue Earth Police Department for incident reports related to a misdemeanor juvenile assault case and named the accused and provided a description of events. The juvenile was a minor at the time of the incident, though he is now an adult. The report also contains information that identifies two juvenile witnesses. <em> </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> </td> </tr> </tbody> </table> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>What is the classification of data in an incident report involving a misdemeanor juvenile assault case, pursuant to Minnesota Statutes, sections 13.82 and 260B.171?</li> <li>What is the classification of data about two juvenile witnesses who are also identified in the report?</li> </ol> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies government data as public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data that law enforcement agencies collect, create, and maintain are generally classified pursuant to Minnesota Statutes, section 13.82. Peace officer records about children who are or may be delinquent or who may be engaged in criminal acts (bad actor juveniles), however, are generally classified as private by Minnesota Statutes, section 260B.171, subdivision 5. That section also provides that data on juvenile victims and witnesses are classified pursuant to section 13.82, subdivisions 2, 3, 6, and 17.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1:</strong> What is the classification of data in an incident report involving a misdemeanor juvenile assault case, pursuant to Minnesota Statutes, sections 13.82 and 260B.171?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 260B.171, subd. 5, classifies peace officer records of children as private. Records relating to an offense where proceedings are open to the public under Minnesota Statutes, section 260B.163, subdivision 1, are an exception to that general classification. Where proceedings are open to the public, related data are classified pursuant to section 13.82. Proceedings will be open to the public in the event that the juvenile is subject to extended juvenile jurisdiction and has been alleged to have committed or has been proven to have committed an offense that would be a felony if committed by an adult and the child was at least 16 years of age at the time of the offense. (See section 260B.163, subdivision 1.) Proceedings will also be open to the public once a juvenile has been certified to stand trial as an adult. (See section 260B.125.) (Proceedings involving traffic offenses by juveniles, not at issue here, are addressed in Minnesota Statutes, section 260B.225.) </p> <p xmlns="http://www.w3.org/1999/xhtml">The 17-year-old juvenile here was involved in a misdemeanor and according to the County Attorney the proceedings were closed to the public. Thus, the data in the incident report are classified as private pursuant to section 260B.171, subd. 5. Paragraph (a), clause (3) of that subdivision further provides that peace officer records of bad actor juveniles must be disclosed, “as authorized under section 13.82, subdivision 2.” Section 13.82, subd. 2(j) provides that the age and sex of a juvenile person cited, arrested, incarcerated, or otherwise substantially deprived of liberty, are public. Per section 260B.171, all other identifying data are private.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, here, KSTP requested access to the incident report by naming the individual and providing the factual context of the incident. Thus, the Blue Earth Police Department cannot provide any data responsive to the request, because a response would disclose private data about the juvenile by confirming his identity and the nature of the incident. (See also, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267979" target="_blank">Advisory Opinion 11-007</a>: “Although the registration data the requestor seeks… are public when not linked to an individual, once they are connected to an individual, pursuant to Minnesota Statutes, section 84.0874, the registration data cannot be released.”)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner also notes that the analysis remains the same, even though the data subject here is now an adult. Data that law enforcement collected, created, and maintain about him as a juvenile continue to be classified according to section 260B.171.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2:</strong> What is the classification of data about two juvenile witnesses who are also identified in the report?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Unlike bad actor juveniles, data on juvenile witnesses are not automatically classified as private. Data about juvenile witnesses are classified pursuant to section 13.82, subds. 2, 3, 6, and 17. (See section 260B.171, subd. 5.) Subds. 2, 3, and 6, classify identifying information about witnesses (the names of individuals who supply information that leads to an arrest; the names and addresses of individuals who request law enforcement services; and the names and addresses of witnesses to agency action or the incident, respectively) as public, unless those individuals qualify for protection under subd. 17. </p> <p xmlns="http://www.w3.org/1999/xhtml">Subd. 17(g) provides that law enforcement shall protect an individual’s identity, “when access to the data would reveal the identity of a juvenile witness and the agency reasonably determines that the subject matter of the investigation justifies protecting the identity of the witness.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The County Attorney wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As this is a case involving assault allegations which relates to a separate assault case which has garnered significant media attention, the police department believes that the subject matter justifies protecting the identity of these witnesses.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As the Department has made the required determination, the identifying information about the witnesses are private per section 13.82, subd. 17.</p> <p xmlns="http://www.w3.org/1999/xhtml">(Data about a juvenile who is both a witness and an alleged bad actor are classified by section 260B.171. See, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267614" target="_blank">Advisory Opinion 03-042</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml"><br /></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The classification of data in an incident report involving a misdemeanor juvenile assault case are private pursuant to Minnesota Statutes section, 260B.171.</li> <li>Data identifying two juvenile witnesses are private pursuant to Minnesota Statutes, section 13.82, subdivision 17, because the Blue Earth Police Department has determined that the subject matter of the investigation justifies protecting the witnesses. </li> </ol> <p class="MsoNormal" style="margin-left: 0.5in;" xmlns="http://www.w3.org/1999/xhtml"> </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: February 26, 2018</p>3275362672802663022663932025-12-09T16:28:04Z266258266293323425266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-323424" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2018-01-10T13:39:23ZA state agency asked about the classification of data in an arbitrator’s order reversing all discipline of a public official. The Commissioner opined that Minn. Stat. § 13.43, subd. 2(e) classified the data as public. Regardless of whether there has been a final disposition of disciplinary action, all data (except for other not public data, e.g., private personnel data) about a complaint against a state-level public official become public upon completion of an investigation, or if the employee is terminated or resigns while the complaint is pending.January 10, 2018; Minnesota Management and Budget36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On December 15, 2017, the Data Practices Office received an advisory opinion request from Eric Hallstrom, Deputy Commissioner for Minnesota Management and Budget (MMB). In his letter, Mr. Hallstrom asked the Commissioner to issue an advisory opinion regarding classification of certain data that MMB maintains.  </p> <p xmlns="http://www.w3.org/1999/xhtml">MMB provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A state agency has received a request for data related to the disciplinary discharge of an individual who was a public official under Minn. Stat. [sec.] 13.43, subd. 2(e). In this situation, the public official had rights to a just cause discharge proceeding – an appeal to the Bureau of Mediation Services (BMS) under Minn. Stat. [sec.] 43A.33. Under that statute, the hearing of the appeal to BMS is conducted by an arbitrator. The arbitrator in this matter found that the discharge was not supported by just cause, and reversed all aspects of the disciplinary action. The requester has requested a copy of the arbitrator’s order in this matter. </em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>What is the classification of the data in an arbitrator’s order reversing all discipline of a state-level public official, pursuant to Minnesota Statutes, section 13.43?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies all government data as public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals 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.  </p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subdivision 2(e), provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Notwithstanding paragraph (a), clause (5), and subject to paragraph (f), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Subdivision 2(e) also lists the types of employees that are state- and local-level public officials. This opinion only pertains to state-level public officials. </p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subdivision 2(a)(5) provides, “the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action,” are classified as public.</p> <p xmlns="http://www.w3.org/1999/xhtml">A final disposition occurs when: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[T]he government entity makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or court proceedings. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. 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. A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.</em> (See section 13.43, subdivision 2(b).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267615" target="_blank">Advisory Opinion 14-002</a>, the Commissioner opined on the classification of arbitration decisions maintained by the Bureau of Mediation Services (BMS) that arose out of collective bargaining grievance processes. In that opinion, the Commissioner concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, Chapter 13, data in an arbitration decision that sustains a grievance and reverses all aspects of any disciplinary action against a public employee are private personnel data, pursuant to Minnesota Statutes, section 13.43, subdivision 4.</p> <p xmlns="http://www.w3.org/1999/xhtml">In its request for an opinion, MMB wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In Advisory Opinion 14-002, in the context of the grievance arbitration under Chapter 179A, (“PELRA”), the Commissioner determined that an arbitration decision sustaining a grievance and reversing all aspects of disciplinary action is private personnel data under Minn. Stat. [sec.] 13.43, subd. 4. The Opinion notes that section 13.43, subd. 2(b) provides, “[a] disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Opinion, however, did not address the question of whether an arbitrator’s decision under Minn. Stat. [sec.] 43A.33 reversing discipline would be public where the employee is a public official. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>MMB believes that the arbitrator’s decision reversing discipline of a public official is classified as public data… Once an investigation into a complaint against a public official is complete, “</em>all data <em>relating to the complaint or charge are public.”</em> Id. <em>(emphasis added). This is the case “notwithstanding” – regardless – of whether there is final disposition of any disciplinary action. Id. (stating complaint data on public officials is public, “[n]otwithstanding paragraph (a), clause (5),” the clause addressing final disposition of disciplinary action). In other words, this notwithstanding clause means that for public officials,</em> even if <em>no discipline was ever instituted, or a hearing officer reverses discipline, all data related to the complaint against the public official are and remain public upon completion of an investigation.</em> [Emphasis provided.]</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with MMB’s analysis. MMB rightly notes that the data at issue in Advisory Opinion 14-002 relate to arbitration decisions regarding employees who are not public officials and that the Data Practices Act treats complaint data on public officials differently.</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.43, subd. 2(b), clarifies which data become public pursuant to subd. 2(a)(5), due to a “final disposition of disciplinary action.” Because the language of section 13.43, subd. 2(e), specifically excludes the requirement for a final disposition of disciplinary action related to complaints against state-level public officials, whether an entity has disciplined a public official – or an arbitrator has reversed discipline – is not relevant to the ultimate classification of the complaint data at issue here. All data related to a complaint against a state-level public official (except private personnel data on other employees or other not public data) become public once the investigation is complete, or the individual resigns or is terminated while the investigation is pending. </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoNormal" style="margin-left: 0.5in;" xmlns="http://www.w3.org/1999/xhtml">Data in an arbitrator’s order reversing all discipline of a state-level public official are public, pursuant to Minnesota Statutes, section 13.43, subdivision 2(e), except for private personnel data on other employees and other not public data. </p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: January 10, 2018</p>3234242670992022-01-18T19:16:05Z266258266263266323266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-320147" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-12-07T14:04:53ZA school district asked whether it had to provide a copy of an audio-recorded interview with a student to the student’s parent when the recording included educational data on multiple students. The Commissioner opined that the District should make every effort to redact the audiotape so that private educational data of other students is protected. However, if the District was unable to redact the tape, the Family Educational Rights and Privacy Act (FERPA) required the District to inform the parent of the specific information about the parent’s student.December 7, 2017; ISD 564, Thief River Falls36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: See <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-377565" target="_blank">Advisory Opinion 19-004</a> for an updated analysis of the issues presented in this opinion.</strong></p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Office (DPO) received an advisory opinion request from Michael Waldspurger and Kristin Nierengarten, attorneys for Independent School District 564, Thief River Falls (the District). In their letter, they asked the Commissioner to issue an advisory opinion regarding access to certain data that the District maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts is as follows. The District conducted an investigation into a complaint made by a parent (Parent). As part of that investigation, the District interviewed Parent’s student (Student) and audio-recorded the interview. During the two hour interview, Student discussed Student’s conduct, opinions, and observations. Student described locations and circumstances of incidents and activities. Student also identified and discussed other students. Parent subsequently asked the District for a copy of the audiotape.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The data on [Student] and the data on other students are highly sensitive and are unquestionably classified as private data on individuals… Based on these facts, the District believes the recording contains private educational data on [Student] and private educational data on other identifiable students of the District.</em></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Minnesota Statutes, Chapter 13 and the federal Family Educational Rights and Privacy Act, is Independent School District 564 – Thief River Falls – required to provide a parent with a copy of an audio recording of an interview with the parent’s minor student, when the recording also includes educational data about other students?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Data Practices Act classifies government data as public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Data about students and their parents are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and parents, and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has previously opined, “[e]ducational data ultimately are controlled by FERPA; the Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.” (See Advisory Opinion 09-021.) The purpose of FERPA, “is to set out requirements for the protection of privacy of parents and students.” (See 34 CFR 99.2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Subject to limited exceptions, data about students and their parents are private, and may not be released without consent or statutory authority. However, both FERPA and the Data Practices Act allow for disclosure of education records when an entity has de-identified the records. When releasing de-identified data, educational agencies or institutions must be sure, “that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.” (See 34 CFR 99.31(b)(7).) “Personally identifiable information” includes (but is not limited to) a student’s or parent’s name, address, date or place of birth, and:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.</em> (See 34 CFR 99.2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">FERPA further provides, “[i]f the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.” (See 34 CFR 99.12(a). See also 20 U.S.C. sec. 1232g(a)(1)(A).)</p> <p xmlns="http://www.w3.org/1999/xhtml">The audio recording at issue here constitutes private educational data under Minnesota law and private education records under FERPA, on multiple students.</p> <p xmlns="http://www.w3.org/1999/xhtml">In arguing that it could not provide a copy of the tape to Parent, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On the audio recording, the data on [Student] are inextricably intertwined with the data on other students. The District cannot separate the data on Complainant from the private educational data on other students for two reasons. First, the data are in the form of an audio recording. Second, on the audio recording [Student] quickly and frequently transitions between discussing [Student’s] conduct, [Student’s] participation in conduct with other students, the conduct of other students towards [Student] and the other students toward additional students.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Because data on [Student] are interwoven with private educational data on other students, the [Data Practices Act] and FERPA prohibit the District from disclosing the audio recording to Parent.</em> See <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509, 511 (Minn. App. 1993). [(<em>Northwest Publications</em>)]</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is somewhat puzzled by the District’s first reason. It is certainly possible to redact audio and other government entities routinely do so. However, the District did not provide information on whether it is unable to redact due to practical concerns (i.e., it does not have the capability) or whether the inability to do so relates more to its second reason: the substantive nature of the data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District’s second reason for withholding the recording is based on Northwest Publications, in which the Court of Appeals held:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Employing the federal standard we hold that an entire document may be withheld only when the public and nonpublic information is so inextricably intertwined that segregating the material would impose a significant financial burden and leave the remaining parts of the document with little informational value.</em> [Emphasis added.] <em>Northwest Publications</em> at 509.</p> <p xmlns="http://www.w3.org/1999/xhtml">The holding in <em>Northwest Publications</em> applies to documents in which “public and nonpublic” data are inextricably intertwined. In situations where both of the conditions hold (redaction is too costly and would result in little informational value), an entity may take the drastic measure of withholding an entire document. The public would be denied access to public data, but the data subject would retain the right to access the not public data. This is not the case, here. Further, the policy behind both state and federal law mandates parents’ right to access data about their minor children (subject to very limited exceptions).</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the data are a mix of private data on multiple students. If the Commissioner were to accept the District’s argument that <em>Northwest Publications</em> extends to these circumstances, the District would effectively re-classify private educational data as confidential. (See, Minnesota Statutes, section 13.02, subdivision 3). Thus, the practical result of the District’s decision to make a record that it cannot redact would be a record to which only the District had access. However, this is contrary to the express intent of both Minnesota and federal law, which classify these data as private and give data subjects the right of access. (Moreover, the Commissioner is skeptical that, even if <em>Northwest Publications</em> applied to the data at issue here, the District could satisfy both of the threshold requirements. The District did not provide any information regarding the financial burden of redacting an audiotape.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Neither <em>Northwest Publications</em> nor the Data Practices Act answer the question of how to provide the required access to data subjects when there are competing privacy interests. (The Minnesota Supreme Court opinion in <em>Burks v. Metropolitan Council</em>, 884 N.W. 2d 338, 341 (Minn. 2016), seems to provide guidance on situations when data subjects’ rights come into conflict. However, as the District rightly points out, that case did not arise in the context of education records and did not contemplate the effect of FERPA regulations on the analysis.) However, the federal regulations address the issue of multiple data subjects in education records.</p> <p xmlns="http://www.w3.org/1999/xhtml">In 2003, the Family Policy Compliance Office (FPCO), the agency within the federal Department of Education tasked with implementing and providing technical assistance on FERPA, wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml">The law governing the proper handling of a student’s education records that contain personally identifiable information belonging to other students is clear. Indeed, the statute is unambiguous in that it states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>If any material or document in the education record of a student includes information on more than one student, the parents of one such student shall have the right to inspect and review only such part of such material or document as related to such student or to be informed of the specific information contained in such part of such material.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">20 U.S.C. sec. 1232g(a)(1)(A). See also 34 CFR § 99.12(a).</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, absent the consent of the parents of the other students whose names appear in a student’s education records, an educational agency or institution does not have authority to release such personally identifiable information under FERPA. A school district should redact the names of, or information easily traceable to, any other students mentioned in a student’s education records before providing a parent access to the student’s education records.  In cases where joint records cannot be easily redacted or the information segregated out, the school district may satisfy a request for access by informing the parent about the contents of the record. Letter of technical assistance to school district re: disclosure of education records containing information on multiple complainants (FPCO, Oct. 31, 2003)</p> <p xmlns="http://www.w3.org/1999/xhtml">The District must provide access to data on Student to Parent. The District must make every reasonable effort to redact the personally identifiable information on other students from the recording and provide access to Student’s data. Only if the District cannot easily separate Student’s education records from those of other students, then it must “inform” Parent of the specific information about Student.</p> <p xmlns="http://www.w3.org/1999/xhtml">The steps an educational agency or institution might take to satisfy the FERPA standard of “informing” a parent about the specific information in an education record might take different forms depending on the record at issue. Generally, the Data Practices Act does not require entities to create data or to provide it in a different format than the one in which it is maintained. (See Advisory Opinions 00-017, 01-012, and 01-085.) Here, where the interview lasted two hours and likely resulted in a significant amount of information about Student, the District might consider creating a responsive document. In other situations where the circumstances are less involved, an educational agency or institution might fulfill its obligation verbally.</p> <p xmlns="http://www.w3.org/1999/xhtml">The District asked if it was required to create and redact a transcript of the recording. FERPA gives parents the right to access the “specific information” about their students. While this seems to indicate more than a brief summary (e.g., the one provided to the Commissioner for this opinion), it does not necessarily compel an educational agency to create a transcript in every circumstance. Ultimately, the District is in the best position to determine how to inform Parent about the specific information on Student in the recording.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner cautions government entities to pay careful attention to the way in which they create records. The entity must have in place the policies, procedures, and capacities to respond to any data practices requests that might arise subsequent to the creation of records. In other words, if an entity creates an audio recording record, it must ensure it has the capability to redact that recording appropriately, if necessary, in response to a data request.  </p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:</p> <p class="MsoNormal" style="margin-left:.5in" xmlns="http://www.w3.org/1999/xhtml">Independent School District 564 – Thief River Falls – is not required to provide a parent with a copy of an audiotape of an interview with the parent’s minor student if it cannot easily separate the parent’s student’s education record from the records of other students. In lieu of providing a redacted copy of the tape, the District must inform the parents of the specific information in the record.Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: December 7, 2017</p>3201472665332671152669802663342663282022-01-18T19:17:39Z266258266293<custom:Link urlOnly="true" type="Component" destination="tcm:36-316103" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-10-24T06:45:22Za County asked about the classification of the “outcome of a complaint” and the transcript of arbitration proceedings. The Commissioner opined that because the arbitrator reversed discipline for the conduct related to the complaint, but upheld discipline for other conduct, the county responded appropriately to the complainant requester by providing only the existence and status of the complaint. Additionally, the Commissioner opined that the portions of the transcript that documented the final disposition of disciplinary action, the specific reasons for the action, and the basis of the action were public; data about the reversed discipline and personnel data on other employees were private.October 24, 2017; Itasca County36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Scott Lepak, attorney for Itasca County, asked for an advisory opinion regarding certain data the County maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County provided a summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Employee X filed a complaint against Employee Y. The County hired an investigator to look [sic] allegations related to conduct of various employees, including Employee Y. As a result of this investigation, the Sheriff [disciplined] Employee Y. Employee Y appealed his [discipline] to arbitration pursuant to the provisions of a collective bargaining agreement. The arbitration award overturned the [discipline] and discipline for certain conduct but upheld discipline at a suspension level for other conduct. The arbitrator noted a policy violation for a waste of time but did not uphold discipline for the basis of Employee X’s complaint. A transcript of the arbitration hearing was prepared as part of the proceedings.</em> [Private data omitted.]</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, did Itasca County respond appropriately to a request for the “outcome of a complaint,” when it provided only the existence and status of the complaint?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an arbitration transcript where the arbitrator reversed discipline that was based on a complaint by the individual making the data request and upheld discipline based on other conduct</li> </ol> </td> </tr> </tbody> </table> <br xmlns="http://www.w3.org/1999/xhtml" /> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals 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).) </p> <p xmlns="http://www.w3.org/1999/xhtml">When there is a final disposition of disciplinary action, the disciplinary action, together with the specific reason for and data documenting the basis of the action also become public. (See section 13.43, subd. 2(a)(5).)</p> <p xmlns="http://www.w3.org/1999/xhtml">In circumstances where an employee is entitled to grieve initial discipline in an arbitration proceeding, “final disposition” occurs at the conclusion of arbitration proceedings. A disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action. (Section 13.43, subd. 2(b).)</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1.</strong> Pursuant to Minnesota Statutes, Chapter 13, did Itasca County respond appropriately to a request for the “outcome of a complaint,” when it provided only the existence and status of the complaint?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Employee X requested the outcome of the complaint that Employee X filed against Employee Y.</p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County position is that the outcome of Employee X’s complaint against Employee Y is that the complaint is no longer active, pursuant to Minn. Stat. Sec. 13.43, sub. 2(a)(4), and otherwise is private data pursuant to Minn. Stat. Sec. 13.43, Subd. 4 because Employee Y was not disciplined for the specific conduct Employee X complained about.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees with the County’s position. For purposes of this situation, Employee X is a member of the public; Employee X’s status as the complainant does not entitle Employee X to additional data. Employee X complained about Employee Y and Employee Y’s conduct regarding Employee X. Ultimately, the arbitrator upheld discipline for Employee Y’s other conduct. Thus, the “outcome of the complaint,” as requested by Employee X, is that a complaint existed and it is “no longer active.” Additional data are not public because Employee X’s specific complaint did not result in discipline.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, had Employee X asked the County for any public disciplinary data (or all public data) on Employee Y, Employee X would have been entitled to the final disposition of disciplinary action, the specific reasons for the discipline and data documenting the basis of the action, regarding the conduct for which the arbitrator did uphold discipline.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner reminds the County that the arbitrator did not uphold all of the discipline and therefore, there are portions of the arbitrator’s award that contain private data on Employee Y. See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267615" target="_blank">Advisory Opinion 14-002</a>. Additionally, personnel data about other employees, including Employee X’s identity as a complainant, are similarly private. See <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/267430" target="_blank">Advisory Opinion 93-010</a>.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2.</strong> Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an arbitration transcript where the arbitrator reversed discipline that was based on a complaint by the individual making the data request and upheld discipline based on other conduct?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The County wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The County position is that the only portion of the transcript of the discipline proceeding discussing the matters that ultimately were determined to be policy violations resulting in discipline may be disclosed as public data. The balance of the arbitration transcript would be private data pursuant to Minn. Stat. Sec. 13.43, Subd. 4 because those matters were not upheld in the arbitration award.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees. Similar to the discussion in Issue 1, the disciplinary data related to the conduct for which Employee Y was ultimately disciplined are public (i.e., final disposition of disciplinary action, data documenting the specific reasons for and basis of the action). The data about Employee Y’s other conduct, the subject of Employee X’s complaint, and data about other employees are private.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Itasca County responded appropriately to a request for the “outcome of a complaint,” when it provided only the existence and status of the complaint.</li> <li>The portions of the arbitration transcript that document the final disposition of disciplinary action, taken with the specific reasons for the action, and the basis of the action are public; data about conduct for which discipline was reversed and data about other employees are private, pursuant to Minnesota Statutes, section 13.43.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: October 24, 2017</p>3161032668612668912670992022-01-18T19:17:39Z266258266301<custom:Link urlOnly="true" type="Component" destination="tcm:36-313246" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-09-28T21:00:58Z, a City asked about the classification of data that identify the location of a victim of domestic abuse, when the data are maintained by a nonprofit domestic violence advocacy agency. The Commissioner concluded that while Minnesota Statutes, section 13.823 specifically exempts private nonprofit domestic violence advocacy agencies who are not under the direct control of a government entity from Ch. 13, other sections require those agencies to maintain data about victims as private data as defined in Ch. 13. Additionally, federal statutes also restrict access to information about victims of domestic abuse. Therefore, while the advocacy agencies are not subject to Ch. 13, they must maintain data that identify the location of a victim of domestic abuse as private data and that information cannot be disclosed without consent, statutory authorization, or a court order.September 28, 2017; City of Grand Rapids36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2017). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Chief Scott Johnson of the Grand Rapids Police Department asked for an opinion regarding the classification of certain data. </p> <p xmlns="http://www.w3.org/1999/xhtml">Chief Johnson provided a summary of the facts as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The refusal on the part of Minnesota non-profit advocacy organizations to release location data to Minnesota peace officers regarding the victim of a domestic violence crime has been a reoccurring issue over a number of years. This refusal prevents Minnesota peace officers from performing their duties and is of concern to law enforcement agencies as they conduct follow-up criminal investigations, including the taking of victim and witness statements, subpoena service and, when requested from other government agencies, checking on the safety of victims. Somehow this issue is never resolved.</em> </p> <p xmlns="http://www.w3.org/1999/xhtml">Chief Johnson met with the director of a local non-profit program that provides assistance to victims of domestic violence. The program is not a government entity, nor is its employees or volunteers under the direct control of a government entity. The program receives federal funding through a grant administered by the Office of Justice Programs in the Minnesota Department of Public Safety (OJP). After the initial meeting, the program director arranged a conference call which included Chief Johnson, the Grand Rapids City Attorney, and Suzanne Elwell, the director of the Crime Victim Justice Unit at OJP.</p> <p xmlns="http://www.w3.org/1999/xhtml">As part of his request, Chief Johnson also submitted materials prepared by Ms. Elwell and the Minnesota Criminal Justice Collaborative on Domestic Violence, which included representation from the Minnesota County Attorneys Association, the Minnesota Sheriff’s Association, the Minnesota Chiefs Association and other community stakeholders.<span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Pursuant to Chapter 13, what is the classification of location data maintained by a nonprofit domestic violence advocacy organization that would reveal where a victim of violence is residing?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, applies to government entities. A government entity is a political subdivision, a state agency, or a statewide system. (See Minnesota Statutes, section 13.02, subdivisions 7a, 11, 17 and 18.) The Data Practices Act also applies to contractors in certain circumstances. (See Minnesota Statutes, section 13.05, subdivision 11 and Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/267395" title="Opinion 11 005" target="_blank">11-005</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/267771" title="Opinion 15 003" target="_blank">15-003</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Certain programs that provide assistance to victims of domestic abuse and sexual assault are specifically exempt from the Data Practices Act:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Except as otherwise provided in this subdivision, a program that provides shelter or support services to victims of domestic abuse or a sexual assault and whose employees or volunteers are not under the direct supervision of a government entity is</em> not subject to this chapter<em>, except that the program shall comply with sections 13.822, 611A.32, subdivision 5, 611A.371, subdivision 3, and 611A.46.</em> (Emphasis added.) (Minnesota Statutes, section 13.823, subdivision 2.)</p> <p xmlns="http://www.w3.org/1999/xhtml">While section 13.823 exempts non-governmental programs from the Data Practices Act, the provisions cited in that section provide protection for information that those programs collect and maintain. Section 13.822, classifies as private data about sexual assault communications with a sexual assault counselor. Minnesota Statutes, section 611A.32, gives the Commissioner of Corrections the authority to issue grants to programs that serve victims of domestic violence. Subdivision 5 of that section provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Personal history information and other information collected, used or maintained by a grantee from which the identity or location of any victim of domestic abuse may be determined is private data on individuals, as defined in section 13.02, subdivision 12, and the grantee shall</em> maintain <em>the data in accordance with the provisions of chapter 13.</em> (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Section 611A.37, authorizes the Office of Justice Programs in the Department of Public Safety to issue grants to shelter facilities that serve victims of domestic violence. Subdivision 3 of that section provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Personal history information collected, used, or maintained by a designated shelter facility from which the identity or location of any battered woman may be determined is private data on individuals, as defined in section 13.02, subdivision 12, and the facility shall</em> maintain <em>the data in accordance with the provisions of chapter 13.</em> (Emphasis added.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Private data are, “data made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of those data.” (See Minnesota Statutes, section 13.02, subdivision 12.) Data on individuals must be kept accurate, complete, current and secure (see, Minnesota Statutes, section 13.04.). Employees within an organization or program administering private data, whose work assignments reasonably require access to the data, may have access to it. (See Minnesota Rules, part 1205, subpart 2.) In order for a program to share private data with a third party, there must be a law that allows or requires sharing, a court order or the program can obtain the informed consent of the subject. </p> <p xmlns="http://www.w3.org/1999/xhtml">State law also protects domestic abuse advocates from being compelled to disclose information about their clients without a court order. (See Minnesota Statutes, section 595.02, subd. 1(l). The federal Violence Against Women Act also requires federal grantee programs to protect personally identifying information and personal information about victims of domestic violence and as well as other victims. (See 34 U.S.C. 12291(a)(20) and (b)(2).) There are additional protections in other federal laws, as well. (E.g., Victims of Crime Act, 42 U.S.C. 10604(d) and the Family Violence Prevention and Service Act, 42 U.S.C. 10402(a)(2)(E).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, domestic violence programs that are not government entities or government contractors, while not generally subject to Chapter 13 – like the program at issue in Chief Johnson’s opinion request – must still <em>maintain</em> victim location data (amongst other personally identifying information) as private within the definition as provided in, section 13.02, subd 12, if they are state or federal grantees. Private data cannot be shared outside of the program or agency without consent, court order, or statutory authorization.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City did not provide any legal provisions or offer any arguments which would allow or require private domestic violence programs to supply identification or location data about their clients to law enforcement. While this may have a somewhat unusual practical result, as highlighted in Chief Johnson’s opinion request (i.e., an officer may deliver a victim of domestic violence to a shelter, return a short time later to ask her additional questions, and the program staff are legally restricted from confirming the victim’s presence at the program/shelter), it is the result the law requires.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Justice Collaborative on Domestic Violence’s <em>Guidelines for Domestic Violence Agencies</em>, which Chief Johnson submitted with his opinion request, provides additional guidance to law enforcement and program staff on responding to these types of inquiries.<span style="font-family: Verdana;"> </span></p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Location data maintained by a nonprofit domestic violence advocacy organization that would reveal where a victim of violence is residing must be maintained as private data and cannot be disclosed without statutory authorization, consent, or a court order.</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: September 28, 2017</p>3132463132552022-01-18T19:17:37Z266258266420<custom:Link urlOnly="true" type="Component" destination="tcm:36-312123" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-09-13T13:50:30Za member of the public asked about determinations a county made regarding the appointment of county responsible authorities [“RAs”] and data practices compliance officials [“DPCOs”]. The Commissioner opined that the county did not comply with the data practices act, because it appointed more RAs and DPCOs than are allowed. Each elected official is the RA for that office, as is the director of the county welfare agency. The only other RA and/or DPCO the County may have is an employee appointed by the County Board.September 13, 2017; Hubbard County36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: Per Minnesota Statutes, section 197.603, the county veterans service officer is the RA for all records in the officer's custody. (See Discussion Issue 1) <br /> In Issue 2, the last sentence should reference Issue 3, not Issue 1.</strong></p> <div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Jim Stengrim requested an advisory opinion about determinations Hubbard County made regarding the appointment of County responsible authorities [“RAs”] and Data Practices Compliance Officials [“DPCOs”]. Debbie Thompson, County Coordinator, and Jonathan D. Frieden, Hubbard County Attorney, responded for the County.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Stengrim wrote to the Commissioner:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>According to Hubbard County’s most recent published ‘Data Practices Policy’ there appears to be a responsible authority individual for each county department and that same individual are [sic] also listed as the data practices compliance official for the respective departments. A data request to Hubbard County for all resolutions relating to the appointment of a Responsible Authority produced only one resolution from July 2001 and what appears to be motions made at meetings.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>It appears that the departments of County Attorney and County Sheriff, since they are elected, may be governed by other statutes concerning the appointment of a responsible authority. In addition, it appears that the department of County Human Services may also be governed by other statutes concerning the appointment of a responsible authority. </em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>It appears that Hubbard County has not made any formal resolution(s) since July 2001 in making an appointment of a responsible authority individual. Realistically, this should be done annually but at least when there is a change in the individual.</em> [References to Exhibits omitted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Stengrim further wrote that the individual who was appointed to be the RA and DPCO of Heritage Living Center (a County-owned nursing home facility) is not an employee of Hubbard County.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Stengrim concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>A review of the facts provided shows that Hubbard County has not complied with Minnesota Statutes, Chapter 13, Government Data Practices, and Minnesota Administrative Rule 1205, Data Practices, by appointing multiple Responsible Authorities and Data Practices Compliance Officials.</em></p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did Hubbard County act properly under Minnesota Statutes, Chapter 13, by appointing multiple responsible authorities?</li> <li>Did Hubbard County act properly under Chapter 13 in the appointment of multiple Data Practices Compliance Officials?</li> <li>Did Hubbard County act properly under Chapter 13 when they appointed a non-employee of the County as the Responsible Authority and Data Practices Compliance Official for Heritage Living Center?</li> </ol> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml"><br /> Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1. Did Hubbard County act properly under Minnesota Statutes, Chapter 13, by appointing multiple responsible authorities? </em></p> <p xmlns="http://www.w3.org/1999/xhtml">A person’s rights under the Data Practices Act are invoked when the person makes a request for access to government data to the responsible authority or designee of the government entity that maintains the data. Minnesota Statutes, section 13.02, subdivision 16 (b), provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>“Responsible authority” in any political subdivision means the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law. Until an individual is designated by the political subdivision’s governing body, the responsible authority is:</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) for counties, the county coordinator or administrator. If the county does not employ a coordinator or administrator, the responsible authority is the county auditor;</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The County commented:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Nowhere in Minnesota Statute or case law is a government entity limited to one individual as the responsible authority for the entire entity. To the contrary, the statute defining ‘responsible authority’ notes a government entity may designate an individual for any set of data. Moreover, the public interest is best served by designating multiple individuals to collect, use, and disseminate data, which that individual/department head already controls.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, counties will have more than one RA, because the Legislature decided that elected officials are the RA’s for their own offices, and the director of its welfare agency is also the RA for that agency. However, the Commissioner respectfully disagrees with the County that the County may have multiple RAs.  Other than an RA for each elected official within a county and the county welfare agency, the only other RA the County may have is the individual appointed by the County Board. According to the County’s public data access policy, the County Coordinator is the RA for the County generally. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Legislature allowed for the circumstances the County describes in its explanation of its reasons for appointing additional employees as RAs for their offices (<em>e.g.</em>, Auditor, Assessor, Environmental Services Office), by authorizing the RA to appoint as many designees as the RA determines will be “in the best interest of the administration and enforcement” of the Data Practices Act. (See Minnesota Rules, part 1205.1100, subpart 1.) Minnesota Statutes, section 13.02, subdivision 6, defines “designee” as any person an RA designates to be “in charge of individual files or systems containing government data and to receive and comply with requests for government data.</p> <p xmlns="http://www.w3.org/1999/xhtml">Therefore, an RA may, as the County described, appoint “multiple individuals to collect, use, and disseminate data, which that individual/department head already controls,” but as designees, not RAs.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2. Did Hubbard County act properly under Chapter 13 in the appointment of multiple Data Practices Compliance Officials?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.05, subdivision 13, says that each responsible authority in every government entity shall appoint or designate an employee of the entity to act as the DPCO, who is the entity employee to whom “persons may direct questions or concerns regarding problems in obtaining access to data or other data practices problems. The responsible authority may be the data practices compliance official.”</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, the County may have only as many DPCOs, as it has RAs. And, as described in Issue 1, the DPCO must be an employee of the entity.</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 3. Did Hubbard County act properly under Chapter 13 when they appointed a non-employee of the County as the Responsible Authority and Data Practices Compliance Official for Heritage Living Center?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The County stated, “Minn. Stat. § 13.02 subd. 16 places no restrictions on a government entity as to whom it appoints as the responsible authority. …. Moreover, as previously stated, the individual controlling the data is in the best position to answer data practices requests for the public.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner respectfully disagrees with the County that the “individual” a political subdivision appoints as RA does not have to be an employee. Minnesota Rules, part 1205.0200, subpart 14(A), states:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>For counties, each elected official of the county shall be the responsible authority for the official’s office. An individual who is an</em> employee <em>of the county shall be appointed by the county board to be the responsible authority for any data administered outside the offices of elected officials.”</em> [Emphasis added.]<em> </em></p> <p xmlns="http://www.w3.org/1999/xhtml">An agency rule that is adopted under the rulemaking provisions of Minnesota Statutes, Chapter 14, has the force and effect of law. Accordingly, the director of the nursing home may not be RA for the nursing home.</p> <p xmlns="http://www.w3.org/1999/xhtml">For that matter, as a non-County employee, the director also may not be a designee. (Minnesota Rules, part 1205.100, subpart 1.) </p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, as noted above, the County’s DPCO must be an employee, who, according to the County’s policy, is its RA. </p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Hubbard County did not act properly under Minnesota Statutes, Chapter 13, by appointing multiple responsible authorities.</li> <li>Hubbard County did not act properly under Chapter 13 in the appointment of multiple Data Practices Compliance Officials. </li> <li>Hubbard County may not appoint an individual who is not an employee of the County as the Responsible Authority and Data Practices Compliance Official for Heritage Living Center.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman  <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: September 13, 2017</p>3121232665662022-01-18T19:17:37Z266258266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-310269" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-08-30T12:41:48Za member of the public asked whether a town board violated the Open Meeting Law when a quorum of members met and discussed documents prior to calling a meeting to order. The Commissioner opined that the issue involved a factual dispute that could not be resolved. The opinion requester also asked whether the Board violated the OML because a public copy of all members’ materials was not available to the public at the meeting. The Commissioner opined that the Board did not comply with the OML, because it did not provide a public copy of all members’ materials.August 30, 2017; Brunswick Township Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Ronald Peterson requested an advisory opinion regarding the Brunswick Township Board of Supervisors members’ conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Rick Kawalek, Board Chair, and members Jeff Akken and Craig Peterson, responded on behalf of the Board.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts as provided by Mr. Peterson follows. He wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The public gathered a few minutes before the 7 pm meeting on May 31, 2017 and found all the supervisors present, seated, inspecting and discussing documents. Conversation amongst the public prevented hearing any of the supervisor's deliberations until the meeting was called to order. The supervisors delayed convening the meeting at the noticed time of 7 pm while they continued inspecting documents and deliberating amongst themselves until calling the meeting to order at 7:10 pm. These were the same documents not shared with the public during the meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Peterson also submitted statements from township residents. They wrote: </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At this particular meeting of May 31, 2017, at approximately 6:50 PM, the Town Board was already seated and in a private discussion about items and articles they were in possession of, but only amongst themselves. The attendees were not included. In fact, the Board kept talking amongst themselves and did not call the meeting to order until almost 7:10 PM.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Peterson, after convening the meeting, the Board “inspected and adopted an agenda,” and “inspected and deliberated over other documents,” copies of which were not available to the public. He wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>One of these documents was identified by the town board as a 2005 Conditional Use Permit (CUP). When a copy was requested by the public, citing the Open Meeting Law (OML) requirement, a copy was not made available for the public but instead the public was told by the town board that the CUP was filed at the county recorder’s office and anyone wanting a copy could get one there.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In their comments, the township residents stated, “[a]ll residents in attendance of this meeting witnessed the same push-back that is received at ALL the Township meetings - no agenda is made available to the residents; no minutes were made available; no discussion material was made available.” </p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when a quorum met and discussed documents prior to calling a meeting to order on May 31, 2017?</li> <li>Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 6, by not providing a public copy of all members’ materials at the meeting held on May 31, 2017?</li> </ol> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 1. Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when a quorum met and discussed documents prior to calling a meeting to order on May 31, 2017?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. Minnesota Statutes, 13D.01, subdivision 1(b) (5), states that the governing body of a town is included in that requirement.  </p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>'Meetings' subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body. Moberg v. Independent School District No. 281,</em> 336 N.W.2d 510, 518 (Minn. 1983).</p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the Board stated, “[a]s with every meeting prior to calling it to order supervisors were talking and exchanging pleasantries” and no one discussed documents or board business prior to calling the meeting to order. </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Peterson and other township residents say that before the meeting was convened, they observed a quorum of the Board “seated, inspecting and discussing” documents and “deliberating amongst themselves”. Mr. Peterson did not hear the topic(s) of discussion, but said the documents “were the same documents not shared with the public during the meeting.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot resolve this factual dispute. However, the Commissioner wishes to make clear that once a quorum of the Township board has assembled, it cannot discuss official business prior to convening the meeting.  If in this case, the Board engaged in any discussion of the conditional use permits—other than perhaps clerical matters such as whether it had copies prepared—it violated the OML, per <em>Moberg</em>. </p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Issue 2. Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 6, by not providing a public copy of all members’ materials at the meeting held on May 31, 2017?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 6, requires that at least one copy of any printed materials relating to the agenda items that are distributed at, or before, the meeting to all members of the governing body, or are available to all members in the meeting room, shall be available in the meeting room for the public to review. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Board wrote to the Commissioner that it “did not fail to supply copies of all members’ materials at the meeting. At the meeting, we reviewed the existing C.U.P. and then discussed changes to be made to the C.U.P. to bring it up to date and address concerns that had come up in an earlier hearing and since the original C.U. P. had issued.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The minutes of the May 31, 2017, special meeting state that the Board approved the agenda, and reviewed the C.U.P. permit. Therefore, at least one copy of the agenda and one copy of the permit should have been available to the public during the meeting. </p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Peterson said that when members of the public, citing the OML, asked for a copy of the C.U.P at the May meeting, the Board said that it “was filed at the county recorder’s office and anyone wanting a copy could get one there.” Mr. Peterson and other township residents assert that the Board did not comply with the requirements of section 13D.01, subdivision 6, at the May meeting. </p> <p xmlns="http://www.w3.org/1999/xhtml">The Board wrote to the Commissioner that it “did not fail to supply copies of all members’ materials” but it did not state specifically that the public had access to the agenda and the permit as required. It also stated, “[m]eetings usually do not allow time for making copies of documents during the meeting.” </p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has discussed the importance of this provision of the OML in previous advisory opinions, given that it provides the public the opportunity to follow along as government considers and deliberates public issues. In order to ensure transparency, public bodies must make sure that they always provide public copies of members’ materials. If necessary, a public body should briefly recess a meeting in order to make the required public copy of all written materials under consideration. The Commissioner offered specific guidance in <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/266929" target="_blank">Advisory Opinion 14-010</a>:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Managing the public copy of the members’ materials is a common issue for public bodies and members of the public.  The Commissioner would like to offer the following guidance.  The plain language of section 13D.01, subdivision 6, requires that the public body make “at least one copy” of members’ materials available to the public at the meeting.  In providing only one complete copy, the body fulfills its obligation.  However, as people review its contents, there is a greater chance that the packet may be altered so that others do not have access to it, as Mr. Ruppe suggests may have happened here.  In fulfilling the requirement, it is the public body’s responsibility to make certain that the packet is complete.  Public bodies may consider the following optional strategies, in addition to providing the one copy during the meeting: posting the information on their websites, providing multiple copies, or including a cover-sheet on the public packet listing its contents.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner is sensitive to the fact that members of the public living in certain non-metro townships encounter challenges when trying to access information from their local governments.  Because those bodies are not “government entities” subject to the Data Practices Act (Minnesota Statutes, Chapter 13), the access provided for in the Open Meeting Law is vital to township citizens’ participation in and oversight of their government bodies.  The Commissioner strongly encourages all public bodies to develop ways to guarantee meaningful access to the information required by section 13D.01.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to the Commissioner, the Board did not assert that it made one copy of members’ materials <em>available to the public</em>,” as the OML requires.  The Board asserted that it usually does not have time or capacity to make copies during the meeting. However, the OML makes no exceptions; the law requires copies be available.  Likewise, telling people that the C.U.P. document under review is available at another entity, which they can access at some later date after the meeting is over, is also not compliant with the requirement to have at least one copy available for inspection at the meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has an additional comment. It is the Board’s policy to make only approved minutes available to the public. However, when the Board approves previous meeting minutes at an open meeting, those minutes must be available to the public while the Board is considering them. The Board’s policy to make only approved minutes available does not comply with the requirements of section 13D.01, subdivision 6.</p> <div xmlns="http://www.w3.org/1999/xhtml"> </div> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Commissioner cannot determine whether the members of the Brunswick Town Board complied with Minnesota Statutes, Chapter 13D, prior to calling a meeting to order on May 31, 2017.</li> <li>Members of the Brunswick Town Board did not comply with Minnesota Statutes, section 13D.01, subdivision 6, because it did not provide a public copy of members’ materials.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: August 30, 2017</p>3102692671042022-01-18T19:17:37Z266258eng266282<custom:Link urlOnly="true" type="Component" destination="tcm:36-310101" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-06-22T13:13:59Z a member of the public asked whether a school board violated the Open Meeting Law, when a quorum of members sent a letter to another entity. The Commissioner opined that the Board did not comply with the law because the quorum took official action (i.e., agreeing to the contents of the letter and sending the letter) outside of a public meeting. The Commissioner also addressed the Board’s arguments that written communication does not constitute a meeting.June 22, 2017; ISD 2154, Eveleth-Gilbert36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Joe Begich requested an advisory opinion regarding the Independent School District 2154 – Eveleth-Gilbert Public Schools – school board members’ conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Joel B. Lewicki, attorney for ISD 2154, responded on behalf of the Board</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts as provided by Mr. Begich follows. Four members of the 2016 Eveleth-Gilbert School Board (the Board) sent a signed letter to the Commissioner at the Iron Range Resource and Rehabilitation Board (IRRRB). The IRRRB Commissioner provided the letter to Mr. Begich and others.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Begich wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>I believe that the four members listed [in the opinion request], as a quorum of the 2016 School Board, violated the Minnesota Open Meeting Law by (in whatever fashion), meeting, discussing, deciding, and then taking action in sending their letter regarding School Board business to Commissioner Phillips, as is evidenced by the</em> existence <em>of the letter and Commissioner Phillips’</em> receipt <em>of it.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>There is no evidence in any official District meeting minutes or videotapes… that the School Board as a whole and at a legally noticed public meeting, ever discussed or decided upon the content, drafting, or sending of such a letter.</em> [Emphasis provided.]</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issue:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <p>Did the School Board of Independent School District 2154, Eveleth-Gilbert, comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when four members of the Board sent a letter to a commissioner of the Iron Range Resources and Rehabilitation Board (IRRRB)?</p> </td> </tr> </tbody> </table> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has recognized several purposes for the OML:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) “to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies’] decisions or to detect improper influences”; (2) “to assure the public’s right to be informed”; and (3) “to afford the public an opportunity to present its views to the [public body].” These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access.</em> [Citations and footnote omitted.] <em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729, 735 (Minn. 2002).</p> <p xmlns="http://www.w3.org/1999/xhtml">The OML requires meetings of public bodies to be open to the public, with limited exceptions. Minnesota Statutes, 13D.01, subdivision 1(b) provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>All meetings, including executive sessions, must be open to the public</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(b) of the governing body of a</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(1) school district however organized.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>‘Meetings’ subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</em> <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983) (<em>Moberg</em>).</p> <p xmlns="http://www.w3.org/1999/xhtml">A majority of voting members of a school board constitutes a quorum. (Minnesota Statutes, section 123B.09, subdivision 6.) The District’s Board of Education is made up of seven members and therefore, four members make a quorum.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner opined about the type of conduct that should take place at a public meeting in <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267022" title="Opinion 06 017" target="_blank">Advisory Opinion 06-017</a>. In that opinion, a City needed to hire an accountant. The first candidate declined the offer and the second candidate quit shortly after starting the job. The Council then had to decide whether to extend an offer to the third candidate. To do so, the City Administrator called four members of the Council (a quorum) and they each stated that an offer should be extended to the third candidate.  While there was a factual dispute in that opinion, the Commissioner concluded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>If… a majority of the members of the Council took action with respect to the hiring of the accountant, then the OML has been violated. That the city administrator served as the go-between among the members should not change the outcome, given the manner in which the OML is to be construed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Here, in response to the Commissioner of Administration, the Board wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In early October, Michael Peterson [board member] individually drafted a letter to Mark Phillips, IRRRB Commissioner, but did not send it. Mr. Peterson sent that letter draft to Superintendent Jeff Carey, who made minor revisions. The revised letter was then placed on Eveleth-Gilbert Public Schools letterhead and given individually to Keith Young, Board Chair; Michael Peterson, Vice-Chair; Mona Putzel, Clerk; and Leon Schanlaub, Treasurer for their signatures.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At no point did a quorum of the Board meet, discuss, decide, or take action on the issue(s) described in the letter, the contents of the letter, or the drafting or sending of the letter.</em> (Citations omitted.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In this case, a quorum of the school board effectively took the action of deciding to write a letter to the commissioner of the IRRRB stating a quorum of the board’s concerns, and position relative to various conversations and actions that were occurring. The Board’s assertion that it did not discuss, decide, or take action on the contents of the letter or sending the letter is not plausible based on the very existence of a letter purporting to be from “the Board” and bearing the signatures of a quorum of members of the Board. The subject line is “RE: Official Correspondence.” In it, the Board members wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>ISD 2154 is governed by elected representatives, and by the Superintendent who takes direction from the Board as a whole, not in part. It is disheartening to see individual Board members and community members muddy the waters that we have already cleared and would appreciate if they would not be given an audience in the future as they do not represent the Board of Education that was elected to make these decisions.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Board did not provide any other explanation about how the Board could have drafted and issued the letter (including determining which members should sign the letter) without participating in some form of group decision-making. There is nothing in the records of Board meetings about the letter and the Board does not seem to maintain any official records about it. In response to a data request for, “any and all public government data that the District has in relation to the letter [to the IRRRB],” the District replied that it did not have any responsive data. (For a government entity’s responsibility to create and maintain official records, see Minnesota Statutes, section 15.17.) In sum, the Board clearly took official action almost entirely outside of the public purview.</p> <p xmlns="http://www.w3.org/1999/xhtml">Moreover, as the Board stated in its letter to the IRRRB Commissioner, the Superintendent “takes direction from the Board as a whole, not in part,” and thus, any actions that the Superintendent took in revising the draft letter, placing it on District letterhead, distributing it to a quorum of members for signatures, and sending it to the IRRRB would have required direction from “the Board” (i.e., communication from a quorum of members where they agreed on the Superintendent’s tasks related to the letter).</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Board argued that written communication does not constitute a “meeting.” In support of its argument, the Board cited an unpublished case of the Court of Appeals that held that written communications are not “meetings” under the OML. (<em>O’Keefe v. Carter</em>, a12-0811, 2012 WL 6734463 (Minn. Ct. App. Dec. 31, 2012.) Unpublished opinions of the Court of Appeals are not precedential, pursuant to Minnesota Statutes, section 480A.08, subdivision 3(c). The Board's argument is not relevant here, though, because the official action a quorum of the board took in agreeing to the contents of the letter prior to sending the letter should have occurred at an open meeting. Ultimately, it is not permissible for an individual member of the Board to send a draft letter to the superintendent to distribute individually to a quorum of the Board in order to avoid taking official action in a public meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, to address the Board's argument, the Commissioner continues to endorse the reasoning in <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267446" title="Opinion 09 020" target="_blank">Advisory Opinion 09-020</a>, that more contemporary forms of written communication (e.g., email and text) could constitute a meeting and that the focus should not be on the media or form, but on the number (a quorum) and the conduct (reaching consensus and taking action) of public body members. As in Opinion 09-020, the Commissioner continues to encourage the Legislature to clarify the extent to which written communication may violate the OML.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The School Board of Independent School District 2154, Eveleth-Gilbert, did not comply with the OML when four of members of the Board sent a letter to a commissioner of the Iron Range Resources and Rehabilitation Board (IRRRB).</p> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: June 22, 2017</p>3101012663902022-01-18T19:17:36Z266258Are the data collected by the third-party administrator of the City of Duluth’s self-insured group health plan "government data" under Minnesota Statutes Section 13.02, subdivision 7? If the answer to Issue 1 is yes, are the data classified as private data on individuals under Minnesota Statutes section 13.02, subdivision 12? If the answer to Issue 2 is yes, must the City or its third-party administrator provide a Tennessen warning notice prior to obtaining the data, per Minnesota Statutes section 13.04, subdivision 2?Data practicesInsurance Tennesseneng266358266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-300482" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-05-05T15:14:43Za city which operates a self-insured group health plan for its employees asked whether data collected by the third-party administrator were government data, how they would be classified, and whether the administrator was required give a Tennessen notice prior to collecting the data. The Commissioner opined that because the third-party administrator was collecting government data from the employees, the data were classified as private (Minnesota Statutes, section 13.43 subd. 4), and because the administrator is required to comply with the Data Practices Act as if it were a government entity (Minnesota Statutes, section 13.05, subdivision 11), it was required to provide a Tennessen notice prior to collecting the data.May 5, 2017, City of Duluth36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: Minnesota Statutes, section 13.387, is also applicable to the data at issue in this opinion.</strong></p> <div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Steven Hanke, attorney for the City of Duluth, requested an advisory opinion regarding the classification of data the City maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City provided the following summary of the facts:</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Duluth operates a self-insurance pool, referred to as the Duluth Joint Powers Enterprise Trust, for the City’s group health insurance plan. The plans cover eligible current employees, retired employees, and their dependents. The City’s collective bargaining agreement [sic] contain specific health insurance plan design requirements in regards to covered procedures, prescription drug pricing, monthly premium cost sharing, and so forth. The collective bargaining agreements also require retired employees and their qualified dependents to obtain Medicare Part A and B coverage if they are eligible.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City of Duluth contracts with HealthPartners Administrators, Inc., as third-party administrator of the City’s self-insured group health plan. HealthPartners Administrators, Inc. sends City plan participants correspondence (several examples attached) soliciting information from Plan participants.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City believes that the data collected by HealthPartners Administrators, Inc. constitutes “government data” because it is being collected to perform a government function: administration of the City's self-insured health plan for its eligible employees, retirees, and their dependents.</p> <p xmlns="http://www.w3.org/1999/xhtml">Thus, the City believes that HealthPartners Administrators, Inc. is subject to Minnesota Statutes, section 13.05, subdivision 11(a). The City also believes the data in question are private, and therefore, per Minnesota Statutes, section 13.04, subdivision 2, HealthPartners Administrators, Inc. must give a Tennessen Warning notice when it collects the data listed on the above-referenced questionnaires and forms.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Are the data collected by the third-party administrator of the City of Duluth’s self-insured group health plan "government data" under Minnesota Statutes Section 13.02, subdivision 7?</li> <li>If the answer to Issue 1 is yes, are the data classified as private data on individuals under Minnesota Statutes section 13.02, subdivision 12?</li> <li>If the answer to Issue 2 is yes, must the City or its third-party administrator provide a Tennessen warning notice prior to obtaining the data, per Minnesota Statutes section 13.04, subdivision 2?</li> </ol> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity contracts with a private person to perform any of its functions, data related to performance of the contract are subject to the requirements of Minnesota Statutes, Chapter 13, and the private person must comply with those requirements as if it were a government entity. (Minnesota Statutes, section 13.05, subdivision 11.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. It also classifies "data pertaining" to an employee’s dependents as private.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 1.</em></strong><em> Are the data collected by the third-party administrator of the City of Duluth’s self-insured group health plan "government data" under Minnesota Statutes Section 13.02, subdivision 7?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">"Government data" are defined in Minnesota Statutes, section 13.02, subdivision 7, as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City's third-party administrator collects and maintains the data in question to carry out the function of administrating the City’s self-insured group health plan. Under section 13.05, subdivision 11, it must comply with the Data Practices Act as if it were a government entity in carrying out its duties related to the contract. Thus, the data are government data.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 2.</em></strong><em> If the answer to Issue 1 is yes, are the data classified as private data on individuals under Minnesota Statutes section 13.02, subdivision 12?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As noted above, data on public employees and their dependents are classified under section 13.43. The data collected on the forms that are used to administer the City’s self-insured health plan are private per section 13.43, subdivision 4, because they are data on employees/former employees that are not explicitly classified as public under subdivision 2, or are data on dependents.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 3.</em></strong><em> If the answer to Issue 2 is yes, must the City or its third-party administrator provide a Tennessen warning notice prior to obtaining the data, per Minnesota Statutes section 13.04, subdivision 2?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">When a government entity collects private or confidential data about an individual from that individual, the entity is required to provide a notice, commonly referred to as a Tennessen warning. (Minnesota Statutes, section 13.04, subdivision 2.) This notice must contain the following: (a) the purpose and intended use of the data; (b) whether the individual can refuse or is legally required to provide the requested data; (c) what the consequences are of supplying or not supplying the data; and (d) the identity of other persons or entities outside of the collecting agency authorized by state or federal law to receive the data.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner previously has opined that if an entity does not give an individual a Tennessen warning notice when required, or if an entity’s notice is inadequate, the entity cannot store, use, or disclose any of the data it collected from the individual. (Minnesota Statutes, section 13.05, subdivision 4.) (See also Advisory Opinions, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267488" target="_blank" title="95-028">95-028</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267715" title="02-045" target="_blank">02-045</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267652" title="07-009" target="_blank">07-009</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/266924" title="13-011" target="_blank">13-011</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">In order to administer the City’s self-insurance plan, its third-party administrator collects private data from eligible City employees, retirees, and their dependents. As noted above, the third-party administrator must comply with the Data Practices Act as if it were a government entity, and therefore it must provide a Tennessen warning notice prior to obtaining private data from those individuals.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, at least one of the forms the City submitted asks for Social Security Numbers (SSN). The Commissioner previously has opined that when an entity collects an individual’s SSN, federal law imposes some additional notice requirements. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267764" title="01-040" target="_blank">01-040</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/266882" title="04-020" target="_blank">04-020</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267792" title="04-048" target="_blank">04-048</a>.)</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>Data collected by the third-party administrator of the City of Duluth’s self-insured group health plan are “government data” by operation of Minnesota Statutes, section 13.05, subdivision 11 and under section 13.02, subdivision 7.</li> <li>The data are classified as private data on individuals under Minnesota Statutes section 13.43, subdivision 4.</li> <li>The City’s third-party administrator must provide a Tennessen warning notice prior to obtaining the data, per Minnesota Statutes sections 13.05, subdivision 11, and 13.04, subdivision 2.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml"><br /> Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: May 5, 2017</p>3004822664192665462022-01-18T19:17:35Z266258Did the City of Birchwood Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a portion of its meeting on September 8, 2015, on the basis of the attorney-client privilege? Open Meeting LawAttorney-client privilegeeng266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-300478" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-04-26T15:14:43Za member of the public asked whether a City Council properly closed a meeting pursuant to the attorney-client privilege exception to the Open Meeting Law. The Commissioner could not determine whether the Council made the required statement on the record. He opined that the Council did not comply with the Open Meeting Law when it closed the meeting on the basis of attorney-client privilege because the Council did not show that the Council required absolute confidentiality.April 26 2017, Birchwood Village City Council36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Alan Mitchell requested an advisory opinion regarding the Birchwood Village City Council (Council) members’ conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Mark F. Gaughan and Caroline Bell Beckman provided comments from the Council.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts as provided by Mr. Mitchell follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The last item on the Birchwood City Council’s agenda for its regular monthly meeting on September 8. 2015, was entitled City Attorney’s Report. When this item on the agenda came up, the mayor moved, without any discussion, that the last portion of the meeting be closed for attorney client privilege. The City Council voted 4-0 (one member was absent) to close that portion of the meeting. The item to be discussed in the closed session was not identified… and no statutory authority for closing the meeting was cited.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Mitchell provided a transcript of the portion of the meeting preceding the closure:</p> <p xmlns="http://www.w3.org/1999/xhtml">Mary [Mayor]: So now we need to go into our attorney’s report and I think, Alan [City Attorney], we need to go into private session for that.</p> <p xmlns="http://www.w3.org/1999/xhtml">[City Attorney]: Mayor and council, if you would like to, you can try to caption, I guess, whatever rationale for that you would like to and ask permission to close regarding attorney client privilege information.</p> <p xmlns="http://www.w3.org/1999/xhtml">[Mayor]: So with that I would move that we close this portion of the meeting for attorney client privilege… (brief interruption to ask another speaker whether she wanted to be heard on another matter before the meeting is closed). So I make a motion that we close this portion of the meeting for attorney client privilege. Is there a second.</p> <p xmlns="http://www.w3.org/1999/xhtml">[Councilmember]: Second.</p> <p xmlns="http://www.w3.org/1999/xhtml">[Mayor]: All those in favor. (All ayes. 4-0, Councilman Randy LaFoy absent.)</p> <p xmlns="http://www.w3.org/1999/xhtml">[City Attorney]: … And mayor and council, I will just note that it is 8:28 p.m. by my phone anyway, and that this is a closure for attorney client privilege communication (recording ceased and speaker was cut off)</p> <p xmlns="http://www.w3.org/1999/xhtml">The transcribed portion of the meeting that Mr. Mitchell submitted is substantially similar to the transcript submitted by the Council. The Council’s transcript describes the recording cutting off the last statement from the City Attorney as:</p> <p xmlns="http://www.w3.org/1999/xhtml">[City Attorney]: And that this is a closure for the attorney/client privilege communication re-- <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Both parties directed the Commissioner to the City’s website to review the video of the meeting at issue, which he did. The video demonstrates that the City Attorney was in mid-sentence when the audio cut out.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the opinion request, the Commissioner agreed to address the following issues:</p> <p xmlns="http://www.w3.org/1999/xhtml">Did the City of Birchwood Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a portion of its meeting on September 8, 2015, on the basis of the attorney-client privilege?</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">The Open Meeting Law requires most meetings of public bodies to be open. One exception to this general rule is that public bodies may close a meeting based on attorney-client privilege. (Minnesota Statutes, section 13D.05, subd. 3(b).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally,[b]efore closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.” (Minnesota Statutes, section 13D.01, subdivision 3.) The Commissioner has addressed this requirement in numerous previous opinions.  (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267613" title="06-012" target="_blank">06-012</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267496" title="12-008" target="_blank">12-008</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267617" title="07-018" target="_blank">07-018</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Court of Appeals has held that in order to satisfy the requirement of section 13D.01, subd. 3, public bodies must 1) identify the authority to close a meeting and 2) provide a “particularized statement describing the subject to be discussed.” (See, <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471, 476 (Minn. Ct. App. 2004).) The Commissioner has opined that an efficient way to fulfill the first requirement is to cite to the specific statute that allows or requires the public body to close the meeting. However, citing the law is not a requirement; a public body must simply state the specific grounds. (See Advisory Opinion <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267497" title="06-020" target="_blank">06-020</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267821" title="14-005" target="_blank">14-005</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council submitted the following comments:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Near the end of the meeting, the City Attorney recommended that the Council close the meeting pursuant to the attorney-client privilege. According to the transcript and video recording of the meeting, the City Attorney states, “And that this is a closure for attorney-client privilege information re--,” at which point the television technician cut the audio recording of the meeting. The video camera remained on, clearly capturing on-going discussions between the City Attorney and the Council in open session. According to Mayor Mary Wingfield, the City Attorney went on to explain, in open session, that the meeting was being closed pursuant to attorney-client privilege and the subject of the closure was code violations at 407 Lake Avenue. Further, according to [the Mayor], the City Attorney instructed her to repeat this information herself in open session. The Mayor recalls the awkwardness of repeating the attorney’s statements.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council did not submit a recording of the meeting that shows the discussion as described. The video of the meeting available on the City website cuts off at the same point as the transcript notes the audio cutting off. Thus, based on the record, the Commissioner cannot determine whether the Council made a proper statement on the record as it asserts or whether it did not describe the subject to be discussed as Mr. Mitchell asserts.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council stated that it was closing the meeting on the basis of the attorney-client privilege exception; therefore, it met the requirement to state the specific grounds permitting the meeting to be closed. If the Council provided the additional statement regarding code violations at 407 Lake Avenue,” then it satisfied the second part of the requirement. If the Council did not provide the particularized description of the subject, then it did not satisfy the requirement.</p> <p xmlns="http://www.w3.org/1999/xhtml">Even if the statement fulfilled the technical requirements of section 13D.01, subd. 3, the question remains whether the meeting was properly closed pursuant to the attorney-client privilege under section 13D.05, subdivision 3(b).</p> <p xmlns="http://www.w3.org/1999/xhtml">The Minnesota Supreme Court has found that the provisions of the Open Meeting Law are to be interpreted in favor of the public. The Court said:</p> <p xmlns="http://www.w3.org/1999/xhtml">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W. 2d 294, 297 (Minn. 1993); <em>see St. Cloud Newspapers</em>, <em>Inc. v. Dist. 742 Cmty. Schs.,</em> 332 N.W. 2d at 6 (stating that the Open Meeting Law “will be liberally construed in order to protect the public’s right to full access to the decision-making process of public bodies.)</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Prior Lake American v. Mader,</em> 642 N.W. 2d 729, 735 (Minn. 2002) (<em>Prior Lake</em>).</p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.05, subdivision 3(b), permits a public body to close a meeting on the basis of attorney-client privilege. While the Legislature enacted subdivision 3(b) in 1990, the Minnesota Supreme Court recognized an attorney-client privilege exception to the OML in 1976. (See <em>Minneapolis Star and Tribune v. the Housing and Redevelopment Authority</em>, 251 NW 2d 620 (Minn. 1976) (<em>HRA</em>) and <em>Prior Lake</em>.) A public body may use the exception when the policy underlying the privilege balanced against the policy underlying the OML weighs in favor of absolute confidentiality. Moreover, “the fact of threatened litigation does not necessarily mean that a public body has ‘the need for absolute confidentiality’ in its dealings with its counsel.” <em>Prior Lake</em> at 738. The Court has also cautioned that the privilege is narrower for public bodies and may not be invoked for general legal advice. (See also, Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267583" title="99-003" target="_blank">99-003</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267821" title="14-005" target="_blank">14-005</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267684" title="14-015" target="_blank">14-015</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/268018" title="16-004" target="_blank">16-004</a>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council submitted a full transcript of the September 8, 2015, meeting. The transcript does not show any discussion of litigation or potential litigation with the City, as either defendant or plaintiff. The meeting discussion centered on a section of the City’s building code, a specific project that illustrated the challenges of implementing that section, and whether the Council needed to change it going forward. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The majority of the meeting was open to the public. At the beginning of the meeting, the Mayor described how the building code section works and stated, “So I guess we probably should figure out, you know with the advice of our attorney what we want to do.” The meeting continued in open session and the Council went on to discuss a variety of related issues, including a moratorium on the code section and the Council subsequently decided to hold a special meeting to decide whether to institute a moratorium. The Council also decided that it would wait until the following regular meeting to take action on changing the language of the code section. At the end of the meeting, the Council then went into closed session based on the attorney-client privilege exception.</p> <p xmlns="http://www.w3.org/1999/xhtml">The City Attorney presented the following summary upon returning to open session:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[City Attorney]: Mayor and council, thank you, we did talk generally about what the city’s options are with respect to zoning codes and things like that. I believe it was decided that next week, either Monday or Tuesday, that a special meeting will be called to consider an interim ordinance to study the height determination for purposes of your building and planning of houses in Birchwood. If that's fair to say?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Council provided additional information in responding to the Commissioner:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>[At the September 8, 2015, meeting], the Council conferred in closed session with the City Attorney, There, the Council sought advice from the City Attorney regarding the pursuit of legal action against the contractor/builder. Upon re-opening the meeting to the public, the City Attorney described to the public that “we did talk generally about what the City’s options are with respect to zoning codes and things like that.”</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Ultimately the City did not pursue legal action against the contractor/builder, instead choosing to amend its building height requirements and also passed a conflict of interest policy.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Council further wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In the present case, the Birchwood City Council faced not only a threat (from then-Chair of the Planning Commission) of “repercussions; if his project was not permitted to continue, but also with the question of initiating legal action against the contractor/builder for a project given improper approval by a building official. Importantly, the decision to close the meeting followed significant public discussion and participation on the substance of the matter. This is a case that tips the scale in favor of candid communications between a public body and its attorney without additional public intrusion.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Case law thus far has not addressed closing a meeting pursuant to the privilege when the public body is the potential plaintiff. In <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267471#/detail/appId/1/id/267295" title="14-017" target="_blank">Advisory Opinion 14-017</a>, the Commissioner wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner is not aware of a court case that examines the application of the attorney-client privilege exception when the public body is a potential plaintiff in a lawsuit, as is the situation here, or how that might affect the balancing of purposes of the privilege and the OML. Nevertheless, the Supreme Court’s limitations on the privilege, taken together with the obligation to construe the OML in favor of the public, set a high standard for public bodies.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Based on the statement on the record that the Council may have made prior to closing the meeting, the summary the City Attorney provided following the closed session, and the transcript of the full meeting, it does not seem that, on balance, the Council met the standard to use the privilege to close the meeting. Discussions of the city options with regard to zoning codes and things like that” (e.g., deciding whether to institute a moratorium or the consequences of whether to change a section of building code), seems like a topic more properly addressed in a public forum.</p> <p xmlns="http://www.w3.org/1999/xhtml">However, the Council provided additional facts about potential litigation based on a threat of “repercussions” from the builder/contractor and that the Council had considered pursuing legal action.</p> <p xmlns="http://www.w3.org/1999/xhtml">The situation here is similar to that in the <em>Prior Lake </em>case, in which the Minnesota Supreme Court held that the Prior Lake City Council improperly closed a meeting. A company stated that if it did not receive a conditional use permit (CUP) as allowed under a Prior Lake ordinance or if the City required an environmental assessment worksheet (EAW), the company would sue. Prior Lake had not decided yet whether to require an EAW or whether to issue the CUP. The Prior Lake City Council went into closed session on the basis of attorney-client privilege based on that threat. In rejecting the City use of the exception, the Court provided the following guidance:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Given the contentious nature of many land-use proceedings, we are concerned about the ramifications of holding that open meetings may be closed to allow council members to meet with an attorney about how to view a threat of litigation relating to a public matter that has yet to be decided. Such a holding might well eviscerate the Open Meeting Law. No doubt public bodies frequently face threats of litigation associated with their decisions. Threats of litigation notwithstanding, the public has a right "to be informed of all actions and deliberations" that affect the public interest. Balancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Prior Lake</em> at 739-740.</p> <p xmlns="http://www.w3.org/1999/xhtml">Here, when Council closed the September 8, 2015, meeting, it had not yet decided whether to institute a moratorium on the then-current building code section. It had yet to act on changing the building code section at issue to respond to the builder/contractor situation. The record does not reflect whether the Council had taken action to reverse its position and permit the builder/contractor to continue his project (thereby neutralizing the threat of “repercussions” from him) or whether that decision was also pending. Moreover, the Council did not present arguments to the Commissioner that the discussion in closed session would contribute to litigation strategy nor did it generally identify the information that would damage the Council’s position in litigation had it been disclosed to the public. (See <em>Prior Lake</em> at 740.) In short, the record does not demonstrate that the Council required absolute confidentiality when it closed the meeting.</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, the Commissioner notes that meetings closed based on the attorney-client privilege exception are the only closed meetings that public bodies are not required to record and thus, the record for review is necessarily limited. As such, adherence to the other requirements of the OML becomes even more significant, so that the public can be informed and can judge whether closure is indeed appropriate.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot determine whether the Birchwood Village City Council complied with Minnesota Statutes, Chapter 13D, by providing the statement on the record before going into closed session during the September 8, 2015, meeting as required by Minnesota Statutes, section 13D.01, subd. 3.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Birchwood Village City Council did not comply with Minnesota Statutes, Chapter 13D when it closed a portion of the September 8, 2015, meeting on the basis of the attorney-client privilege exception pursuant to Minnesota Statutes, section 13D.05, subdivision 3(b).</p> <p xmlns="http://www.w3.org/1999/xhtml"><br /> Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: April 26, 2017</p>3004782662852022-01-18T19:17:35Z266258Did the City of Woodbury comply with Minnesota Statutes, Chapter 13 (the Data Practices Act), when it redacted the following data from initial complaint reports (“ICRs”), Documents 1A–4: 1A, 1B, and 1C: street address of the incident locations; data on a complainant, data about witnesses to the incidents; and data on arrestees; 2A, 2B, and 2C: name and age of a complainant, who appears to be one of the drivers involved in a traffic accident; other unspecified information; the date of birth for a juvenile who may have been a passenger in a vehicle in a traffic accident; birth dates and phone numbers for people believed to be involved in accident; 3A and 3B: street addresses for a fire concern and fire call, and complainant names, addresses and phone numbers; and 4: street address of the incident location and the name, home address, phone number, and date of birth of the complainant? Did the City comply with the Data Practices Act when it did not release any data from the ICR on a law enforcement ride-along background check? Did the City comply with the Data Practices Act when it did not release any data from ICRs identified in Documents 6A and 6B? Did the City comply with the Data Practices Act when it redacted the date of birth of the defendant from a copy of a criminal complaint?Data practicesProtected identitiesLaw enforcement dataeng266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-300473" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-04-18T15:14:43Za newspaper asked if a city police department had properly classified various data elements in various police incident reports (ICRs). The Commissioner determined that the city had properly redacted some data elements, improperly withheld others, and in some cases could not make a determination. The Commissioner noted that law enforcement agencies must exercise their discretion to protect certain identities on a case-by-case basis, and must document those determinations. April 18, 2017; City of Woodbury36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Scott Wente and Mathias Baden, on behalf of the <em>Woodbury Bulletin</em>, requested an advisory opinion regarding the classification of data the City of Woodbury (City) maintains.</p> <p xmlns="http://www.w3.org/1999/xhtml">Mark Vierling, attorney for the City, submitted comments on its behalf.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. Baden asked the City’s police department for access to certain data, as detailed below.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the opinion request, the Commissioner agreed to address the following issues:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li><em>Did the City of Woodbury comply with Minnesota Statutes, Chapter 13 (the Data Practices Act), when it redacted the following data from initial complaint reports (“ICRs”), Documents <strong><em>1A</em></strong>–<strong><em>4</em></strong>:</em> <ul> <li><em><strong>1A</strong>, <strong>1B</strong>, and <strong>1C</strong>: street address of the incident locations; data on a complainant, data about witnesses to the incidents; and data on arrestees;</em></li> <li><em><strong>2A</strong>, <strong>2B</strong>, and <strong>2C</strong>: name and age of a complainant, who appears to be one of the drivers involved in a traffic accident; other unspecified information; the date of birth for a juvenile who may have been a passenger in a vehicle in a traffic accident; birth dates and phone numbers for people believed to be involved in accident;</em></li> <li><em><strong>3A</strong> and <strong>3B</strong>: street addresses for a fire concern and fire call, and complainant names, addresses and phone numbers; and</em></li> <li><strong><em>4</em></strong><em>: street address of the incident location and the name, home address, phone number, and date of birth of the complainant?</em></li> </ul> </li> <li><em>Did the City comply with the Data Practices Act when it did not release any data from the ICR on a law enforcement ride-along background check?</em></li> <li><em>Did the City comply with the Data Practices Act when it did not release any data from ICRs identified in Documents <strong><em>6A</em></strong> and <strong><em>6B</em></strong>?</em></li> <li><em>Did the City comply with the Data Practices Act when it redacted the date of birth of the defendant from a copy of a criminal complaint?</em></li> </ol> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Pursuant to section 13.03, subdivision 3(f), when an entity denies access to data, it must cite the specific statutory section or other legal basis for its denial. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Under subdivision 7, data collected or created by a law enforcement agency in order to prepare a case against a person for the commission of a crime or other offense for which the agency has primary investigative responsibility, are not public while the investigation is active, except for the data listed in subdivisions 2 (arrest data), 3 (request for service data), and 6 (response or incident data), which are always public. Absent a criminal investigation, law enforcement data are presumptively public. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">However, notwithstanding subdivisions 2, 3, and 6, data that identify an individual whose identity qualifies for protection under subdivision 17 are private. Law enforcement agencies must protect some identities, and may protect others depending on the circumstances. The law enforcement agency is required to establish procedures to acquire data on individuals whose identities are protected under subdivision 17, in order to evaluate each situation and to exercise its discretion to determine whether an individual’s identity (of relevance here, victims, witnesses, and 911 callers) qualifies for protection under subdivision 17.</p> <p xmlns="http://www.w3.org/1999/xhtml"> <strong><em>Issue 1.</em></strong><em> Did the City of Woodbury comply with Minnesota Statutes, Chapter 13 (the Data Practices Act), when it redacted the following data from initial complaint reports (“ICRs”), Documents <strong><em>1A</em></strong>–<strong><em>4</em></strong>:</em></p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><strong><em>1A</em></strong><em>: street address of the incident location; data on the complainant, victims, and witnesses to the incident; name, address, phone number and date of birth of an arrestee;</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, the City wrote: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The ICR “emanates from a 911 call, a medical emergency, and involves a juvenile.” According to the City, there were 3 victims, and at the time the City gave Mr. Baden the ICR, the matter was still “pending under criminal investigation”. The City redacted the names, addresses, phone numbers, and dates of birth, of the victim, the victim’s mother, and a juvenile, pursuant to section 13.82, subdivision 17.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Section 13.82, subdivision 2, states that the name, age, sex and last known address of an adult who is cited, arrested, incarcerated or otherwise substantially deprived of liberty shall be public at all times in the originating agency. Accordingly, those data are public, and the City must provide access to them. </p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the City also protected the identities of a 911 caller (i.e., the “complainant”), and adult and juvenile victims. As noted above, section 13.82, subdivision 17, permits a law enforcement agency to protect certain identities, under certain circumstances.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Under subdivision 17(f), the identity of a 911 caller, or the identity of a service subscriber whose phone was used to place the call, may be protected under two circumstances: if revealing the identity would threaten the personal safety or property of any person, or, if the object of the call was to receive help in a <em>mental health</em> emergency. </p> <p xmlns="http://www.w3.org/1999/xhtml">In addition, adult and juvenile victims’ identities may be protected if they so ask, <em>and</em> the law enforcement agency determines that revealing the individual’s identity would threaten his/her safety or property. The same conditions apply to protecting the identity of adult witnesses. A law enforcement agency may protect the identity of a juvenile witness without a request if it determines that the subject matter warrants it. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The City did not provide information to the Commissioner confirming that revealing the identity of the 911 caller (complainant) would threaten the personal safety or property of any person, or, if the object of the call was to receive help in a <em>mental health</em> emergency. One of those conditions must apply in order to protect that identity. The City also did not confirm to the Commissioner that any of the witnesses had asked to have their names withheld because they feared for their safety, and whether the City reasonably determined that revealing the identity of the victim or witness would threaten the personal safety or property of the individual. The City could have redacted these identities if any of the above conditions applied. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Further, the City did not confirm whether it has the required procedures in place “to acquire the data and make the decisions necessary to protect the identity of individuals described in subdivision 17. Without additional factual information, the Commissioner is unable to determine whether it was appropriate for the City to withhold data based on section 13.82, subdivision 17.</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><strong><em>1B</em></strong><em>: incident location address, names, addresses, phone numbers, and ages for two suspects who were arrested</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">The City stated: “[t]his entire ICR was in an open investigation mode at the time that the preliminary ICR with partial redactions were allowed to be released, and as under a criminal investigation all redactions are allowed under Minn. Stat. § 13.82 subd.7.” <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">For data on arrestees, the analysis is the same as in <strong>1A</strong> above. In addition, per section 13.82, subdivisions 2(a) and 6(a), the time, date and place of the action are always public, and may not be protected under subdivision 7.</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><strong><em>1C</em></strong><em>: dates of birth and phone numbers for an arrestee and possible witnesses listed on the report</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">The City wrote: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Predominantly, what has been deleted from this ICR are the phone numbers and the day and month of the date of birth of the individuals. As we review Minn. Stat. §13.82, it is only the age of the individuals that must be allowed, and thus, the Department’s policy has been to leave the year of birth available for public viewing, but not to release the day and month of the date of birth section of the ICR. Additionally, we do not read Minn. Stat. §13.82 as requiring or making public the phone numbers of the individuals cited in the ICRs, and of course any phone number that would otherwise identify a 911 caller, crime victim, victim of domestic abuse, or Home Safe Program participant under subd.17 of Minn. Stat. §13.82, thus the Department had stricken [sic] from all the ICRs.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner agrees that when there is an active investigation, the only data that are public about witnesses and victims under section 13.82, subdivision 6, are their names and addresses (unless they qualify for protection under subdivision 17). Therefore, the City may protect any other data about witnesses and victims as active criminal investigative data under subdivision 7, including their full dates of birth and phone numbers. </p> <p xmlns="http://www.w3.org/1999/xhtml">However, with respect to individuals who are cited, arrested, incarcerated, or otherwise deprived of liberty, law enforcement agencies must provide access to “age” data, per subdivision 2. Typically, the data that document the age of arrestees are the full dates of birth, and therefore the only way to provide the actual (i.e., to the day) age of the individual is by providing the full date of birth. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">In its response to Issue 4, below, the City wrote that it redacts the month and day of an individual’s date of birth “as a matter of policy within the department,” because it is not required “under Minn. Stat. §13.82 or other provisions that require the age of the individual. It is the City’s belief that by release of the year of the date of birth, the requestor is more than capable of determining the age of the individual, and that access to the month and date of birth is not necessary beyond the release of the year.” <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner is aware that law enforcement agencies interpret the meaning of “age” differently; some provide full dates of birth of arrestees under subdivision 2, and others redact the month and day, and make public only the birth year, as the City does. Given the various interpretations, and the fact that the Legislature used both terms in section 13.82, the Commissioner concludes that the City properly redacted the month and day, but also would be in compliance if it provided the full date of birth as public arrest data. See also discussion of <strong>2A</strong>–<strong>C</strong> regarding the distinction between age and date of birth as those terms appear in section 13.82.</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><em><strong>2A</strong>, <strong>2B</strong>, and <strong>2C</strong>: name and age of a complainant, who appears to be one of the drivers involved in a traffic accident; other unspecified information; the date of birth for a juvenile who may have been a passenger in a vehicle in a traffic accident; birth dates and phone numbers for people believed to be involved in accident</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">The City wrote: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Again, we note that this call is a result of a 911 emergency call. The first redactions relate to the identification and address of the 911 caller, in addition to their phone number. Their year of birth is left public and available for reading. Their month and day of birth has been redacted for the reasons as noted above. The identification of the juvenile identified within the margin has also been identified, as this is a result of a vehicle accident, but the phone number and month and day of birth have been stricken as per department policy as statute requires only the age be disclosed.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Documents <strong>2A</strong>, <strong>2B</strong>, and <strong>2C</strong> are reports of traffic accidents.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">In all three, the City redacted the full date of birth of each individual. Contrary to section 13.82, subdivision 2, which classifies the <em>age</em> of an arrested individual as always public, subdivision 6(k) explicitly makes public the dates of birth of the parties involved in a traffic accident. Thus, the City should not have redacted the full dates of birth. As the Commissioner noted above, law enforcement agencies differ in their determinations about whether, in order to provide the age of an arrestee, they must provide the complete date of birth.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The City also redacted the identities, including phone number, of each 911 caller. The Commissioner cannot determine whether the City appropriately protected those identities. As discussed above under <strong>1A </strong>and<strong> 1C</strong>, the City could have redacted the 911 caller identities if it had determined any of the relevant conditions applied to redact the identities. However, the City did not provide the Commissioner with information about its determinations to redact. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The City also redacted the date of birth and phone number of a juvenile party to the accident. The City did not protect the juvenile’s identity, so the Commissioner assumes data about the juvenile are not otherwise classified as private under Minnesota Statutes, Chapter 260B, which governs certain data on juveniles. Accordingly, the juvenile’s full date of birth is public. As noted above, the City may withhold the juvenile’s phone number only if there is an active criminal investigation into the matter.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner cannot determine if the City properly withheld access to the identity of the 911 caller. As discussed under <strong>1A</strong>, the City could have redacted the 911 caller identity if it had determined any of the relevant conditions applied to redact the identity. However, the City did not provide the Commissioner with information about its determination to redact.</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><strong><em>3A</em></strong><em> and <strong><em>3B</em></strong>: street addresses for a fire concern and fire call, and complainant names, addresses and phone numbers;</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">Regarding Document <strong>3A</strong>, the City wrote: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Again we note the incident was as a result of a 911 call. The address of the 911 caller is not public data as required under Minn. Stat. §13.82 subd.17. Names associated with or address otherwise redacted within the other portions of the report refer back to the identification of the 911 caller and their address, which is also prohibited by statute. Phone numbers were redacted as previously noted as not required by Minn. Stat. §13.82.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">See above discussions regarding the circumstances under which the City may protect those identities if the conditions set out in subdivision 17 are met. See also Issue 1, Documents <strong>1A</strong>, <strong>2A</strong>–<strong>C</strong>. The City can redact the phone numbers.</p> <ul xmlns="http://www.w3.org/1999/xhtml"> <li><strong><em>4</em></strong><em>: street address of the incident location and the name, home address, phone number, and date of birth of the complainant?</em></li> </ul> <p xmlns="http://www.w3.org/1999/xhtml">The City wrote: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>We note again that this is a result of a 911 call. The location of the 911 caller is redacted as provided by Minn. Stat. §13.82 subd.17. In addition, the names associated with the incident would otherwise identify the 911 caller, and were redacted along with the 911 caller’s phone number; the 911 caller’s phone number appears in 2 places within the report, and were redacted in both locations.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">As noted above, the City can protect the identity of a 911 caller under two circumstances: if revealing the identity would threaten the personal safety or property of any person, or, if the object of the call was to receive help in a mental health emergency.  See above discussions, Issue 1, Documents <strong>1A</strong>, <strong>2A</strong>–<strong>C</strong>.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 2. </em></strong><em>Did the City comply with the Data Practices Act when it did not release any data from the ICR on a law enforcement ride-along background check?</em>  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">According to Mr. Wente and Mr. Baden, the City stated that the ICR is not public because it “pertained to a ride-along background check.” The City wrote to the Commissioner:  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Background checks of the participant of the ride along are protected by Minn. Stat. §13.87 subd. 1 (b). The individual on the ride along had no convictions of any offenses. The City conducts its background checks through the Office of the Minnesota Bureau of Criminal Apprehension, and it is our opinion that the individuals who participate in ride alongs whose backgrounds are secured by the Department for the purposes of the ride along are protected under Minn. Stat. §13.82.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has not seen the ICR, and therefore is not certain about the type or classification of data it contains. It appears that the City conducts criminal background checks on individuals who will participate in ride-alongs. Minnesota Statutes, section 13.87, applies to “all data maintained in criminal history records compiled by the Bureau of Criminal Apprehension” and classifies certain criminal history data as private. To the extent that the City maintains criminal history records from BCA, including those on ride-along participants, the data are private pursuant to section 13.87.  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">However, the City’s ICRs are classified pursuant to section 13.82, and the Commissioner cannot determine why or whether criminal history data would appear on an ICR, which typically documents the actions of a law enforcement agency. If the subject’s name is the only data that appears in both the ICR and the other data collected in the background check, then the name as it appears on the ICR is presumptively public under section 13.82. Further, data in the ICR classified by subdivisions 2, 3 and 6 are public.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 3.</em></strong><em>Did the City comply with the Data Practices Act when it did not release any data from ICRs identified in Documents <strong>6A</strong> and <strong>6B</strong>?</em>  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Regarding Mr. Wente and Mr. Baden stated that the City “did not provide [the ICRs listed in Documents <strong>6A</strong> and <strong>6B</strong>] at all, citing multiple statutes.”   <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">In response to Mr. Baden’s request for the identities of those involved in <strong>6A</strong>, the City cited section 13.82, subdivisions 5 and 7. The City stated to the Commissioner that <strong>6A</strong> contained data about a domestic abuse incident “where privacies are protected” under section 13.82, subdivision 17. The Commissioner respectfully disagrees that the City may protect data under subdivision 5, as it does not classify data, and subdivision 7 classifies only active criminal investigative data that are not explicitly public under subdivisions 2, 3, and 6. Regarding its redactions of identities pursuant to subdivision 17, see earlier discussion of Issue 1.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong>6B</strong> lists 20 ICRs requested by Mr. Baden, four of which have written notations following them, indicating that the City was withholding access from the entire ICRs pursuant to section 13.82, subdivision 7, and in 2 cases, under Minnesota Statutes, section 260B.171, which classifies as private peace officers’ records of children who are or may be delinquent.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has not seen the specific ICRs at issue, but they very likely contain some public data under section 13.82, subdivisions 2, 3, or 6; for example, date and time of action, and identities of the individual officers who responded. Accordingly, the City should have provided access to the ICRs, redacted as appropriate.</p> <p xmlns="http://www.w3.org/1999/xhtml"><strong><em>Issue 4. </em></strong><em>Did the City comply with the Data Practices Act when it redacted the date of birth of the defendant from a copy of a criminal complaint?</em>  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">In its comments to the Commissioner, the City wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The fully public version of the Complaint is available at the Washington County Courthouse for persons that wish to see this particular file. At the time of the request to the City of Woodbury the requestor made a request for the document not from the Court file but from the City’s individual file.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Under section 13.82, subdivision 7, any investigative data presented in court are public. If the criminal complaint had been presented in court at the time the City provided Mr. Baden with a copy, then the full birthdate of the defendant is public. (See Issue 1, Documents <strong>2A</strong>–<strong>2C</strong>.)</p> <p xmlns="http://www.w3.org/1999/xhtml">Finally, a note about this provision in section 13.82, subdivision 17:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Data concerning individuals whose identities are protected by this subdivision are private data about those individuals. Law enforcement agencies shall establish procedures to acquire the data and make the decisions necessary to protect the identity of individuals described in clauses (c), (d), (f), and (g).</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Accordingly, the identities of those individuals are not subject to automatic protection. Law enforcement agencies must exercise their discretion on a case-by-case basis and document those determinations.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The City of Woodbury complied with Minnesota Statutes, Chapter 13 (the Data Practices Act), when it redacted the following data from initial complaint reports (“ICRs”), Documents <strong>1A</strong>–<strong>4</strong>: <ul> <li>Victims', witnesses', and arrestees' phone numbers and dates of birth.</li> <li style="list-style: none"> <p>The City of Woodbury improperly withheld access to:</p> </li> <li>Arrestees’ name, age, and last known address</li> <li>Incident location address</li> <li>Full dates of birth of parties in traffic accidents</li> <li style="list-style: none"> <p>The Commissioner cannot determine whether the City appropriately protected the identities of:</p> </li> <li>911 callers, victims and witnesses, including street addresses of incidents</li> </ul> </li> <li>The City did not comply with the Data Practices Act when it did not release any data from the ICR on a law enforcement ride-along background check.</li> <li>The City did not comply with the Data Practices Act when it did not release any data from the 20 ICRs identified in Documents <strong>6A</strong> and <strong>6B</strong>. The City should have provided redacted copies of the ICRs.</li> <li>The City did not comply with the Data Practices Act when it redacted the full date of birth of the defendant from a copy of a criminal complaint, if the complaint had been presented in court at the time the City provided a copy to the public.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml"><br /> Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: April 18, 2017</p>3004732667232025-03-21T16:21:38Z266258Pursuant to Minnesota Statutes, Chapter 13 (the Data Practices Act), did Independent School District 2860, Blue Earth Area Schools, respond appropriately to a request for the payroll timesheet data of a former employee, classified by Minnesota Statutes, section 13.43?Data practicesPersonnel datatime sheets or payrolleng266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-300472" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2017-03-22T15:14:43ZA member of the public asked whether he could have access to a former teacher’s time sheet data for a time period following a public court case. The District denied access to the data, arguing that the data were private personnel data because of the existence of a complaint at the District during the same period. The Commissioner opined that the plain language of Minnesota Statutes, section 13.43, subd. 2, classifies the existence and status of a complaint, as well as time sheet data (or other comparable data used for payroll purposes) as public. The District did not reveal the nature or character of the complaint and therefore, the District would not have been revealing private data by providing the timesheet data to the data requester.March 22, 2017, ISD 2860 (Blue Earth Area Schools)36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Anthony Acosta requested an advisory opinion about the classification of data that Independent School District 2860 – Blue Earth Area Schools (the District), maintains. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Michelle Kenney, attorney for the District, submitted comments on its behalf. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">On January 20, 2017, Mr. Acosta submitted the following data request to the District: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">I am requesting to inspect the following data about [a former teacher] from May 16, 2016 to June 30, 2016: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Data classified as public pursuant to Minnesota Statutes, section 13.43, subd. 2(a)(8): “payroll time sheets or other comparable data that are only used to account for employee’s work time for payroll purposes.”</p> <p xmlns="http://www.w3.org/1999/xhtml">The District responded: “The data you requested is either not maintained by the School District or is classified as private personnel data under Minnesota Statutes, section 13.43 and is not accessible to you.”  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The District provided additional information about its interaction with Mr. Acosta. On September 30, 2016, Mr. Acosta wrote an email to the District. Quoting that letter, the District responded: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">I asked Superintendent Evan Gough to comment on whether [the teacher] was allowed to teach following a May 15 incident in which he was charged with domestic assault or was he placed on paid leave.”  <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The data you request is classified as private personnel data under Minnesota Statues Section 13.43 and therefore the data you request is not accessible to you.</em> <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Gough says the district was aware of a complaint and was conducting an investigation. He insists on not saying whether the complain [<em>sic</em>] is the same as the court case or a written complaint was filed with the district. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Dr. Gough correctly provided you with the “existence and status of any complaints or charges under Minnesota Statutes Section 13.43, subd. 2(a)(4). The further data you request is classified as private personnel data under Minnesota Statutes Section 13.43,which is not accessible to you.</em> [Reformatted.]</p> <p xmlns="http://www.w3.org/1999/xhtml">In that email, Mr. Acosta also wrote, “I could go check time cards and try to figure out whether [the teacher] was put on leave or not, but I shouldn’t have to.”</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the opinion request, the Commissioner agreed to address the following issues:</p> <p xmlns="http://www.w3.org/1999/xhtml">Pursuant to Minnesota Statutes, Chapter 13 (the Data Practices Act), did Independent School District 2860, Blue Earth Area Schools, respond appropriately to a request for the payroll timesheet data of a former employee, classified by Minnesota Statutes, section 13.43?</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Data on individuals 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.  <br /> The existence and status of a complaint against an employee are always public. Unless there is a final disposition of disciplinary action, the subject and the nature of the complaint are private. (Section 13.43, subdivision 2(a)(4).)</p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, section 13.43, subdivision 2(a)(8) (“clause 8”), provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>Payroll time sheets, or other comparable data used only to account for an employee's work time for payroll purposes, are public except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not public data.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In comments to the Commissioner, the District wrote:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>An employee’s payroll status during the period of time that a complaint has been received and an investigation is pending cannot be viewed as anything other than private data. <br /> … <br /> When responding to Mr. Acosta’s request, the School District understood that Mr. Acosta, as well as the community at-large because of Mr. Acosta’s reporting, had knowledge that [the teacher] was arrested on May 26, 2016[,] and was subsequently charged with misdemeanor domestic assault… Mr. Acosta’s request for payroll data regarding [the teacher] was for the same period of time (from May 16, 2016, the day of his arrest through the end of the school year). Thus, the School District’s response to Mr. Acosta’s request would disclose [the teacher’s] payroll information during a period of time in which the School District had knowledge of a complaint and an investigation was pending.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The District cited several advisory opinions in support of its argument (See, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267431" target="_blank">Advisory Opinions 04-047</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267479" target="_blank">07-004</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267863" target="_blank">08-005</a>.) Those opinions discuss how the context of a request for public data might impact access to the data. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">In Advisory Opinion 07-004, a public data requester asked for the names of employees in internal email communications about the employees’ performance. The Commissioner said that while names of government employees are public, providing access to the names in the context of comments about their work performance would impermissibly reveal private data. In that situation, the names have not been “reclassified” as private, rather <em>the access</em> impermissibly reveals private data. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Advisory Opinion 04-047 seems to refute the District’s position that timesheet data are inaccessible just by virtue of the existence of a contemporaneous complaint: <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner also wishes to comment on the use of the terms "on leave with pay" and "on leave without pay" in connection with a response to a data request about the status of a complaint/charge made against an employee. Because leave with or without pay may be a form of discipline, it should not be released by the entity</em> when the entity is responding to data requests relating to the status of a complaint/charge against an employee. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Commissioner acknowledges that a data requestor will be able to determine whether a government entity is or is not paying an employee. Section 13.43, subdivision 2(a)(8), states that "...payroll time sheets or other comparable data that are only used to account for" an employee's work time for payroll purposes are public.”</em><em> </em>In responding to requests for payroll time sheet data, however, the entity would not be disclosing that any paid or unpaid leave an employee takes is related to a complaint or charge<em>.</em> <em>Further, the entity would be disclosing only data relating to an employee's past or current pay standing, not data about the employee's future pay standing.</em> [Emphasis added.] <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Additionally, the Minnesota Supreme Court has also considered a situation where a school district disclosed that a teacher under investigation was on “medical leave.” While the Court did not squarely address the contextual issue under consideration here, it found the disclosure to be a permissible disclosure of public data, even though the District had also disclosed that a complaint existed at the same time as the leave. (See, <em>Navarre v. South Washington County Schools</em>, 652 NW 2d 9, 22 (Minn. 2002).) Thus, contrary to the District’s assertion, the existence of a pending complaint does not itself affect the classification of timesheet data. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">Here, the teacher’s complaint at the District did not result in the final disposition of disciplinary action, so the nature and character of that complaint remains private. The data requester had knowledge of public information from the court record. His admitted goal was to determine whether the subject of the court case was related to the complaint at the school and whether either had a bearing on the work schedule/payment of the teacher. However, when asked directly, the District repeatedly – and appropriately – declined to connect any existing complaints against the teacher with the subject of the court case. Consequently, Mr. Acosta was unable to link the subject of the court case directly to the subject of the complaint at the District. Thus, had the District simply provided Mr. Acosta access to public timesheet data, it would not have been impermissibly disclosing private complaint data. <br /></p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has a final note. The practical result of the District maintaining timesheet data as private complaint data is that when a complaint does not result in discipline, those timesheet data seemingly remain “private” in perpetuity. The plain language of the statute resists such an interpretation. Consider other public elements in 13.43, subd. 2 – dates of employment, terms and conditions of the employment relationship, expense reimbursement, etc. When these elements are requested at the same time as a request for public complaint data, the fact that a complaint exists does not mean that those public elements become private or reveal private data, even if an entity is using them in an active investigation. As Advisory Opinion 04-047 discusses, what would be inappropriate is if an entity responded to a request for data about a pending complaint by providing one of the other public data elements that revealed something about the nature of the complaint.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:</p> <p xmlns="http://www.w3.org/1999/xhtml">Independent School District 2860, Blue Earth Area Schools, did not respond appropriately to a request for the payroll timesheet data of a former employee, classified by Minnesota Statutes, section 13.43.</p> <p xmlns="http://www.w3.org/1999/xhtml"><br /> Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Matthew Massman <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">Dated: March 22, 2017</p>3004722668782025-11-10T22:22:25Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266582" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-11-04T15:14:43Za school board asked whether it might meet in private facilitated discussions designed to, among other goals, “improve trust, relationships, communications, and collaborative problem solving” among board members, without violating the Open Meeting Law. The Commissioner determined that as long as the board avoided even incidental discussions specific to matters within its official duties or powers, a quorum of the board could participate in those sessions because the board was not “gathering to discuss, decide, or receive information as a group relating to ‘the official business’ of the governing body.”November 4, 2016, ISD 625 (St. Paul)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>Nancy L. Cameron, General Counsel for Independent School District 625, Saint Paul (District), requested an advisory opinion about whether proposed meetings of the School Board to address interpersonal and communication issues would violate Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>The District provided the following summary of the facts. The District has experienced numerous challenges over the past year, and wants "to strengthen community engagement and commitment among [the Board], District administrators, the Saint Paul Federation of Teachers (SPFT), parent advisory councils (PACs), students, and other stakeholders." As part of this effort, the Board accepted a proposal from the Minnesota State Office for Collaboration and Dispute Resolution (OCDR) and the Dispute Resolution Institute at Mitchell Hamline School of Law (DRI), to partner with them in a two-phase, multi-year Collaborative Public Engagement Project (CPEP).</p> <p>According to the project plan, the issues to be addressed include:</p> <ul> <li class="opinion_quote">How to create an environment and mechanism so that administrators, SPFT, Board members, and parents feel valued, heard and respected</li> <li class="opinion_quote">How to improve communication and problem-solving in [the District]</li> <li class="opinion_quote">Development of a shared understanding of roles and responsibilities of administrators, [the Board], teachers, and other school staff</li> <li class="opinion_quote">Clarity around decision making including the role of administrators, SPFT, [the Board], and the community - especially parents</li> <li class="opinion_quote">How to define and implement the principle of equity</li> <li class="opinion_quote">Improved [Board] cohesiveness and ability to work together to serve the District</li> </ul> <p>OCDR and DRI facilitators will conduct the sessions with the Board:</p> <p class="opinion_quote">These conversations--focused on interpersonal and communication issues-can only be effective if conducted privately with the participants involved. The participants would only be the [Board] members, the facilitators, and possibly the [Board] Administrator.</p> <p class="opinion_quote">At issue in this opinion request are the following conversations in the planning process:</p> <p class="opinionquoteinquote">1. Facilitated conversation among Board members</p> <p class="opinionquoteinquote">Board members will meet in (facilitated) sessions to address the following topics:</p> <p class="opinionquoteinquote">a. Board process and decision-making issues</p> <p class="opinionquoteinquote">b. Goals for meeting with administrative and SPFT leadership teams</p> <p class="opinionquoteinquote">2. Facilitated conversation among Board members, administration and SPFT leadership in sessions to:</p> <p class="opinionquoteinquote">a. Improve trust, relationships, communication, and collaborative problem solving capacity</p> <p class="opinionquoteinquote">b. Develop consensus on interim plan for information sharing and decision-making processes</p> <hr /> <h2>Issues:</h2> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Would the School Board of Independent School District 625, Saint Paul Public Schools, violate Minnesota Statutes, Chapter 13D, if a quorum of the Board met privately with a facilitator in sessions designed to "improve trust, relationships, communications, and collaborative problem solving among Board members," if they are not "gathering to discuss, decide, or receive information as a group relating to 'the official business' of the governing body"?</li> <li>Would the School Board violate the OML if it met privately with school administrators and union leadership for similar purposes to those stated in Issue 1?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no dispute that a school board is a public body subject to the Open Meeting Law. Pursuant to Minnesota Statutes, section 123B.09, subdivision 6, a majority of the voting members of a school board constitutes a quorum.</p> <p>Pursuant to the OML, all meetings of a public body must be open to the public. "Meeting" is not defined in the statute, however, the Minnesota Supreme Court addressed the question:</p> <p class="opinion_quote">We therefore hold that "meetings" subject to the requirements of [Chapter 13D] are those gatherings of a quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body. <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p><strong><em>Issue 1</em></strong><em>. Would the School Board of Independent School District 625, Saint Paul Public Schools, violate Minnesota Statutes, Chapter 13D, if a quorum of the Board met privately with a facilitator in sessions designed to "improve trust, relationships, communications, and collaborative problem solving among Board members," if they are not "gathering to discuss, decide, or receive information as a group relating to 'the official business' of the governing body"?</em></p> <p>According to the District:</p> <p class="opinion_quote">The proposed agenda topics are not subject to the OML because the Board members will not be gathering to discuss, decide, or receive information as a group relating to "the official business" of the governing body. See [<em>Moberg</em>]. Instead, the planned sessions are focused on improving trust, relationships, communications, and collaborative problem solving among Board members. The facilitated discussions are also intended to clarify for Board members their individual expectations of the roles and responsibilities of District administrators and what they hope to get out of planned facilitated conversations with administrators and SPFT through the collaborative project. The goal is not for Board members to exchange views on substantive decisions - such as desired superintendent qualifications or proposed policies - that may come before the Board. <br /> <br /> In a similar situation, the Minnesota Attorney General addressed a question related to the OML's application to a public body's training and planning sessions. See Op. Atty. Gen. 63a-5 (February 5, 1975). There, a city asked the Attorney General (AG) whether city council members and the mayor may gather privately in a training program where public business may be discussed incidental to the training.</p> <p>The Attorney General's Opinion states:</p> <p class="opinion_quote">It appears that the substance of the training program would consist largely of discussions devoted solely to developing skills in communication, planning, delegation of responsibilities, and decision-making, and to strengthening and clarifying an understanding of the responsibilities of council members. Thus, such a program would be directed toward developing general techniques in dealing with municipal matters rather than toward resolving specific problems.</p> <p class="opinion_quote">In our opinion, a training program devoted solely to the above-described purposes does not constitute a deliberation on matters within the council's "official" duties or powers and is not inconsistent with the open meeting law. Indeed, to the extent that the training sessions improve council members' skills at effective communication, it seems that the training sessions will provide the public with a more complete knowledge of municipal business and the reasons why decisions are made.</p> <p>The District wrote, "[l]ikewise here, the planned facilitated conversations with the Board, on the agenda topics listed above, may be conducted in private without running afoul of the OML. This AG opinion supports the conclusion that the Board may gather in private for these conversations on these agenda topics."</p> <p>The Commissioner concurs. The type of gatherings the Board contemplates are not meetings for purposes of the OML, per the Court's holding in <em>Moberg</em>, and the Attorney General Opinion.</p> <p>However, the Attorney General also said:</p> <p class="opinion_quote">The facts presented in this opinion do indicate, however, that specific municipal matters may also be discussed at the described training session. Discussions of this nature would constitute a deliberation on a matter within the official duties or powers of the council and would therefore be deemed to be a 'meeting.'</p> <p class="opinion_quote">Thus, while participation in a non-public training program is not inconsistent with the language or purposes of the open meeting law, discussions of matters within the council's official duties or powers must be avoided.</p> <p>Accordingly, the Board should avoid any issues specific to its official business during the sessions, as incidental discussions of public business would constitute a meeting subject to the OML.</p> <p><strong><em>Issue 2</em></strong><em>. Would the School Board violate the OML if it met privately with school administrators and union leadership for similar purposes to those stated in Issue 1?</em></p> <p>The makeup of persons participating in this type of gathering with a quorum of the Board does not alter the analysis for Issue 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The School Board of Independent School District 625, Saint Paul Public Schools, would not violate Minnesota Statutes, Chapter 13D, the Open Meeting Law, if a quorum of the Board met privately with a facilitator in sessions designed to "improve trust, relationships, communications, and collaborative problem solving among Board members," if they are not "gathering to discuss, decide, or receive information as a group relating to 'the official business' of the governing body".</li> <li>See Issue 1.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: November 4, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2665822665812022-01-18T19:18:52Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267093" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-07-15T15:14:43Za member of the public asked whether a Township Board complied with Open Meeting Law (OML) requirements for a special meeting; whether the board held serial meetings; and whether the board violated the law when a quorum attended a county planning commission meeting at which zoning/planning issues were discussed. The Commissioner determined that the board acted properly because the actions it took during the meeting were related to the special meeting notice. In addition, the board did not meet outside of the noticed special meeting or otherwise engage in serial meetings. Finally, because a quorum of the board attended and participated in the county planning commission meeting, relayed board business, deliberated, and received information as a group on issues relating to its official business, the quorum’s presence at the county planning commission meeting was a special meeting that the board should have noticed. July 13, 2016, Westfield Township Board of Supervisors36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>James Peters requested an advisory opinion regarding Westfield Township Board of Supervisors' (Board) conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Jack Perry, attorney for the Board, submitted comments.</p> <p>Mr. Peters provided a summary of the facts as follows. The Board posted notice of a special town meeting of the Township electors (resident voters) for March 31, 2015. The notice stated the time and place of the meeting, and the following purpose: "[t]o discuss with electors only, the question of whether the town board, consisting of 3 supervisors, shall, at some time, adopt land use and zoning regulations in the township of Westfield."</p> <p>Mr. Peters asked the Commissioner to address three issues. First, he objected to actions the Board took at the March 31 meeting, namely, hiring an attorney and adopting an interim ordinance regarding zoning. He also stated that prior to the meeting at issue, he had made a written request that his law firm be notified of all special Board meetings, but the Board did not notify his firm of the March 31 special meeting.</p> <p>(Mr. Peters also raised issues about the operation of statutes governing town meetings, which the Township also discussed in its response. Pursuant to Minnesota Statutes, section 13.072, subdivision 1(b), the Commissioner is addressing only matters governed by the OML in this opinion.)</p> <p>Second, Mr. Peters asserted that the Board held serial meetings sometime in late 2014. He wrote that at its regular October 2014 meeting, the Board agreed to have a public hearing and special meeting on December 1, 2014, for the purpose of taking public input regarding Township planning and zoning. Subsequently, it cancelled that meeting.</p> <p>Mr. Peters' third issue is his belief that two Board Supervisors violated the OML by attending a Dodge County Planning Commission meeting, held on December 11, 2014, "for the purpose of taking in information on matters of significance to the Township without giving notice of the special town board meeting."</p> <hr /> <h2>Issues:</h2> <p>Based on the opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the Westfield Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, regarding a March 31, 2015, meeting?</li> <li>Did the Supervisors comply with Minnesota Statutes, Chapter 13D, if they met outside a noticed meeting and agreed not to implement any planning or zoning ordinance?</li> <li>Did Supervisors comply with Minnesota Statutes, Chapter 13D, when two members (a quorum) attended a county planning commission meeting and heard and discussed matters also before the Board?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong><em>Issue 1</em></strong><em>. Did the Westfield Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, regarding a March 31, 2015, meeting?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13D, public bodies may hold three types of meetings: regular, special, and emergency. For regular meetings, Minnesota Statutes, section 13D.04, subdivision 1, requires a public body to keep a schedule on file at its primary offices. No additional notice is required. A meeting that differs in date, time or location from a regular meeting is a special meeting. Pursuant to subdivision 2, a public body must post written notice of a special meeting on its principal bulletin board or regular meeting room door at least three days before the meeting and it must include the date, time, place, and purpose for the meeting on the notice. (Emergency meetings are not at issue here.)</p> <p>The parties agree that the March 31, 2015, meeting was a special meeting.</p> <p>As noted above, the stated purpose for the meeting was, "[t]o discuss with electors only, the question of whether the town board, consisting of 3 supervisors, shall, at some time, adopt land use and zoning regulations in the township of Westfield."</p> <p>According to Mr. Peters, the Board violated the OML at the March 2015 meeting because it took actions not listed in the statement of the purpose of the meeting, i.e., hiring an attorney and adopting an interim ordinance. He stated that "the three Board members immediately opened the special town board meeting, hired an attorney and adopted an interim ordinance all without notice, without holding a public hearing, and without taking public input."</p> <p>In response, the Township wrote:</p> <p class="opinion_quote">Clearly encompassed by and as a means to facilitate the "discuss[ion]" called for in the Petition and the Notice, the Board began the March 31, 2015 special town meeting by unanimously (1) hiring legal counsel and (2) adopting an interim ordinance temporarily prohibiting any new land uses or land use and zoning regulations in the Township (Interim Ordinance). The express purpose of the Interim Ordinance was to allow the Board "to study and review the implications of and costs associated with" the adoption of a land use and zoning ordinance.</p> <p class="opinion_quote">Despite attaching the public notice of the March 31, 2015 special town meeting to his letter, Peters inexplicably complains that the March 31, 2015 special town meeting was conducted without giving public notice.</p> <p class="opinion_quote">To the extent Peters' complaint is that the Board and its Supervisors hired an attorney and adopted an interim ordinance at this meeting, Minn. Stat. section 366.01, subd. 7 expressly authorizes the Board to employ an attorney for town business, and Minnesota law expressly authorizes the adoption of an Interim Ordinance without advance notice.</p> <p>Furthermore, according to the Township, in June of 2015, Mr. Peters asked the Dodge County Attorney to file a criminal complaint against the Board, alleging in part that the Board violated the OML. The Olmsted County Attorney investigated (due to a conflict of interest on the part of Dodge County), and "determined that the Board had at all times acted lawfully and properly. No criminal charges were filed." One of the issues the Olmsted County Attorney investigated was, "Whether Westfield Township supervisors violated the Minnesota Open Meeting Law by failing to conduct a town meeting as required by statute, [and] failing to give adequate notice of a special board meeting on March 31, 2015 ?"</p> <p>The Olmsted County Attorney's report said, in part:</p> <p class="opinion_quote">The meeting notice was "to discuss with electors only, the question of whether the town board ... shall, at some time, adopt land use and zoning regulations and restrictions in the township of Westfield." To the extent there is alleged a violation of section365.56, Subd. 2, the minutes of the meeting reflect some preliminary "business" was conducted before the discussion of adopting land use and zoning regulations. That preliminary business was the board hiring an attorney to advise the board on the issue to be discussed. The board also adopted a temporary ordinance to prohibit any new land uses or land use and zoning regulations, effectively freezing the situation in Westfield Township for a year to sort out the question.</p> <p class="opinion_quote">While this preliminary business may have strayed a little from the specific meeting notice, the conduct of those discussions and decisions could certainly be considered germane to the business noticed. In fact, a judge or fact finder could certainly determine that the preliminary discussion was within the umbrella of the notice provided.</p> <p>As "purpose of the meeting" is not defined in section 13D.04, subd. 2(a), and has yet to be interpreted by the appellate courts, the Commissioner agrees that the actions taken at the March 31, 2015, are germane to the special meeting notice. Mr. Peters also complained that the Township did not provide his law firm with notice of the meeting. However, pursuant to Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), the Board was obliged to mail or otherwise deliver notice of the special meeting to Mr. Peters, or:</p> <p class="opinion_quote">[A]s an alternative to mailing or otherwise delivering notice to persons who have filed a written request for notice of special meetings, the public body may publish the notice once, at least three days before the meeting, in the official newspaper of the public body or, if there is none, in a qualified newspaper of general circulation within the area of the public body's authority.</p> <p>Mr. Peters provided the Commissioner a copy of the notice the Board published on March 17, 2015, in the <em>Byron Review</em> newspaper, thereby satisfying its obligation to provide him notice of the special meeting.</p> <p><strong><em>Issue 2</em></strong><em>. Did the Supervisors comply with Minnesota Statutes, Chapter 13D, if they met outside a noticed meeting and agreed not to implement any planning or zoning ordinance?</em></p> <p>The Minnesota Supreme Court has held that a gathering of a quorum or more of the members of a public body like the Board is a "meeting" for purposes of Chapter 13D and the requirements of that chapter must be met. <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510 (Minn. 1983). As part of its discussion in <em>Moberg</em>, the Supreme Court cautioned members of a public body that: "serial meetings in groups of less than a quorum for the purpose of avoiding public hearings or fashioning agreement on an issue may also be found to be a violation of [Chapter 13D] depending upon the facts of the individual case." <em>Moberg</em> at 518.</p> <p>According to Mr. Peters, the Board held serial meetings, in person and otherwise:</p> <p class="opinion_quote">[T]o reach an agreement on deciding to not to [sic] implement any planning and zoning and to cancel the public hearing scheduled for December 1, 2014. The Supervisors communicated positions and strategies, engaged in serial communications and gatherings, with the specific intent to avoid public discussion altogether and to forge majority without any public hearing and special meeting.</p> <p class="opinion_quote">The serial meeting or meetings for cancellation of the December 1, 2014, special meeting is documented in the public hearing testimony of [a] Supervisor given on December 11, 2014, before the Dodge County Planning Commission. [He] testified as follows with regard to the private meetings of the Supervisors held to cancel the December 1, 2014 public hearing and special meeting: "we figured that was good enough so we cancelled he [sic] meeting and we have -- as of now we have no intentions of -- having another one unless things change."</p> <p>According to the Township, the only basis for Mr. Peters' allegations is the Supervisor's statements at the Dodge County Planning Commission meeting that, "we had a meeting in between, which I was looking for so we could check into this a little bit. We talked to various people in the community of Westfield and they did not think it was necessary to have our own zoning." Also, according to the Township, the meeting the Supervisor mentioned "was the Board's regular public meeting on November 10, 2014. And there is simply nothing improper about each of the Supervisors' individual discussions with members of the public, and their reporting of those discussions during regular Board meetings."</p> <p>At that regular meeting, the Board, "after a long discussion" voted to rescind its October motion, thus cancelling the December 1, 2014, special meeting. The Board also voted not to proceed with Township planning and zoning.</p> <p>The Commissioner finds the testimony Mr. Peters cited as evidence of serial meetings inconclusive. The minutes of the Board's November 10, 2014, meeting clearly reflect that the Board took formal action at that public meeting to cancel the December 1, 2014, special meeting and to set aside consideration of planning and zoning at that time. The record does not show that Supervisors met outside a properly-noticed meeting in order to fashion an agreement not to pursue planning or zoning regulations. It is not a violation of the OML if individual Supervisors speak individually with their constituents and report on those conversations at an open meeting.</p> <p><strong><em>Issue 3</em></strong><em>. Did Supervisors comply with Minnesota Statutes, Chapter 13D, when two members (a quorum) attended a county planning commission meeting and heard and discussed matters also before the Board?</em></p> <p>In <em>Moberg</em>, the Minnesota Supreme Court wrote:</p> <p class="opinion_quote">We therefore hold that "meetings" subject to the requirements of [Chapter 13D] are those gatherings of a quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</p> <p><em>Moberg</em> at 518.</p> <p>Mr. Peters contends that at the Dodge County Planning Commission meeting, the two Supervisors who attended received information on issues that are before the Township. According to the transcript Mr. Peters provided, when one of the two Supervisors in attendance was called by the Commission chair to speak, he identified himself as a Supervisor and stated that people in Westfield "did not think it was necessary to have our own zoning. He further stated, "[o]ur feelings [sic] is, you as a zoning board, you are the ones that have to get your act together and do what you have to to give them the permit."</p> <p>The Township commented that the OML "does not prohibit members of a governing body from gathering together for purposes not related to the official business of that body." It further commented:</p> <p class="opinion_quote">As this dispute makes clear, the Board has no authority over matters of zoning and permitting. The December 11, 2014 County Planning Commission meeting involved the taking of public input on a CUP [Conditional Use Permit] application for a swine feedlot The Board had no Authority over the swine CUP. Put simply, Peters' statement that [the two Supervisors] "conduct[ed] a special town board meeting on December 11, 2014, at which they took public input on issues impacting the Township" is wrong. [They] received at the December 11, 2014 County Planning Commission meeting no information "on issues relating to the official business" of the Board, and their attendance was not in violation of [the OML].</p> <p>The Commissioner respectfully disagrees. In addition to the Supreme Court's holding in <em>Moberg</em> that gatherings of a public body's quorum to discuss, decide, or receive information relating to official business are meetings subject to the OML, the Minnesota Attorney General has addressed this issue in several Opinions. In AGO 63a-5 February 5, 1975, the Attorney General opined:</p> <p class="opinion_quote">In Op. Atty. Gen. 63a-5, Oct. 28, 1974, we concluded that deliberations by a council on matters within its "official duties or powers" must be open to the public. Examples of matters which were found to be within the council's official duties or powers were discussions on the appointment of persons to the municipality's boards and commissions, the priority to be given to the development of park and recreation facilities, the placing of certain items on the agenda of a future council meeting, and the desirability of adopting various ordinances regarding planning and zoning and the subdividing of land. ID., and Op. Atty. Gen. 471-e, Oct. 28, 1974</p> <p>In AGO 63a-5, Oct. 28, 1974, the Attorney General wrote, "[a] quorum of a public body may conduct a variety of official business pursuant to statutory or charter authority and, since the [OML] law applies to 'all meetings' of the 'governing body,' a gathering of a quorum where municipal matters arise can readily be found to be a meeting of the governing body." (Note 7.)</p> <p>As the Supreme Court and Attorney General have previously determined, matters within a public body's official duties or powers are to be interpreted broadly. Here the first two issues in this opinion are, at center, about whether and or when the Board would take up zoning/planning issues. The Supervisor who was called upon to speak at the Dodge County Planning Commission meeting did so as a Township representative. He conveyed the preferences of the community of Westfield Township to the Commission on an issue that the Township Board clearly discussed and considered as official Township business. A quorum of the Board attended and participated in the Planning Commission meeting, relayed Board business, deliberated and received information as a group on issues relating to the official business of the Board. Accordingly, per the OML, the Court's holding in <em>Moberg</em>, and the Attorney General Opinions, it was a special meeting and the Board should have posted written notice of the time, date, place, and purpose (i.e., a quorum of Supervisors will attend the Dodge County Planning Commission meeting on [date] at [time]).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The Westfield Township Board of Supervisors complied with Minnesota Statutes, section 13D.04, regarding a March 31, 2015, meeting.</li> <li>The Supervisors complied with Minnesota Statutes, Chapter 13D, because the record does not show that they met outside a noticed meeting and agreed not to implement any planning or zoning ordinance.</li> <li>The Supervisors did not comply with Minnesota Statutes, Chapter 13D, when two members (a quorum) attended a county planning commission meeting and heard and discussed matters also before the Board.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: July 15, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2670932670202663632022-04-27T20:55:00Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268018" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-06-29T15:14:43Za school district asked whether it would be in compliance with state and federal laws governing data on students if it included certain data in job postings for work with teachers to provide services to students with disabilities. At the time employees bid, they have not yet been assigned to work with any particular student(s). The Commissioner opined that under Minn. Stat. § 13.32, the data elements in the posting, taken together, inadvertently identify students and their disabilities, which are private. Because bidding employees do not yet have a legally recognized reason to access the private data on students, the District must remove the identifying data elements from the posting.June 29, 2016, ISD 706 (Virginia)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note: The commissioner was not aware, prior to accepting and issuing this advisory opinion, that a district court determined the data at issue were not education data. (Court File Number 69VI-CV-15-794, March 14, 2016.) Because the court order is binding on the parties and an advisory opinion is not, the opinion requester school district may not rely on this advisory opinion.</strong> <br /></p> <h2>Facts and Procedural History:</h2> <p>John M. Colosimo, attorney for Independent School District 706, Virginia, requested an advisory opinion regarding access to certain data the District maintains.</p> <p>The District provided the following summary of the facts:</p> <p class="opinion_quote">AFSCME Local 85 is the exclusive representative for all non-licensed paraprofessionals working with special education students and teachers to assist in providing services to meet the needs of students with disabilities in accordance with the students' IEP [Individualized Education Plan].</p> <p class="opinion_quote">For many years, the practice in the school district had been to allow and permit paraprofessionals the opportunity to bid on a student and assigned teacher to whom services would be provided. Since the level of service provided each disabled student may differ and require different levels and hours of work, the paraprofessionals would be given the opportunity to select their own assignment based on seniority. In the last contract negotiations, the contract language was changed allowing and entitling paraprofessionals to the following information in conjunction with this bid or bumping processitle, building, scheduled time, days of work, hours per week, grade level and case manager.</p> <p>According to the District, a case manager is a "special education teacher who provides services to students who have an IEP. The case manager supervises the work of support staff (paraprofessionals) and implements the IEP."</p> <hr /> <h2>Issue:</h2> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, and federal law, would Independent School District 706, Virginia, disclose private educational data if it included the names and other data related to individual case managers in a job posting to District paraprofessionals bidding for assignments?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Data about students are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students, and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99.</p> <p>Subject to limited exceptions, data about students and their parents are private data on individuals. Minnesota Statutes, section 13.02, subdivision 5, defines data on individuals as, all government data in which any individual is or can be identified as the subject of that data Also, according to Minnesota Rules part 1205.0200, subp 4(f), all data, in whatever form it is maintained, is 'data on individuals' if it can in any way identify any particular individual.</p> <p>In addition, personally identifiable information is defined in the federal regulations implementing FERPA as, [o]ther information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty[.] (34 CFR Part 99.3(f).)</p> <p>To address the issue, the Commissioner reviewed information from the Family Policy Compliance Office (FPCO) of the United States Department of Education. The FPCO provides technical assistance to schools, including providing oral and written interpretations of FERPA.</p> <p>In a 2014 letter to the University of North Carolina at Chapel Hill, FPCO wrote:</p> <p class="opinion_quote">Further, even if the University removed the students' names and other direct identifiers from the spreadsheet and disclosed the other requested information, it appears based on the information you've provided that disclosing this information would be identifiable to some students. The University is in the best position to make that determination. A student's identity may be personally identifiable, even after removal or redaction of nominally identifying information from student-level records. <br /></p> <p>The Commissioner has issued several advisory opinions that discuss circumstances in which the combination of certain data elements may uniquely identify an individual. <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266974" target="_blank">Advisory Opinion 07-001</a>: <br /></p> <p class="opinion_quote">In her request to the District, the newspaper reporter apparently asked for four separate pieces of information related to a hazing incident: the nature of the alleged hazing, the number of students disciplined, the particular athletic team involved, and the disciplinary action taken. Regarding the nature of the alleged hazing, it does not appear this is the type of data the release of which would identify any of the involved students. Therefore, such data are public and the District should have released the information.</p> <p class="opinion_quote">However, the classification of the remaining information sought by the reporter may be more complicated. If, by stating the number of students disciplined and/or the particular athletic team involved and/or the type of discipline imposed, the District would, in effect, be identifying an individual student or students, the District cannot release the information.</p> <p>See also Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267306" target="_blank">12-014</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267479" target="_blank">07-004</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266974" target="_blank">07-001</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267861" target="_blank">05-022</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267372" target="_blank">02-037</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267851" target="_blank">01-053</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267596" target="_blank">97-028</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267359" target="_blank">97-026</a>. <br /></p> <p>Private educational data may be disclosed to individuals within the entity whose work assignments reasonably require access. (See Minnesota Rules, section 1205.0400.) The corresponding language in FERPA's regulations states that data can be disclosed without consent if, [t]he disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. (See 34 C.F.R. section 99.31(a)(1).)</p> <p>FERPA does not define "legitimate educational interest"; it is a duty of school districts to make those interpretations. The FPCO provides guidance in its <em>Model Notification of Rights for Elementary and Secondary Schools</em>:</p> <p class="opinion_quote">One exception, which permits disclosure without consent, is disclosure to school officials with legitimate educational interests. A school official is a person employed by the School as an administrator, supervisor, instructor, or support staff member (including health or medical staff and law enforcement unit personnel); a person serving on the School Board; a person or company with whom the School has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility</p> <p>According to the District:</p> <p class="opinion_quote">Since each case worker works only with certain identified disabled students, it is the school district's concern that this practice and contract language may violate state and federal law by allowing a paraprofessional to obtain personally identifiable information of the student and the student's disability before the paraprofessional has a legitimate educational interest in receiving that information.</p> <p class="opinion_quote">Here, the paraprofessionals are able to ascertain and determine the disability of a student, if not the student himself/herself, by know [sic] the name and identity of the special education case manager. The case managers work with small groups of students usually with the same or similar disability, so that a para could easily determine the disability of a student with whom he/she may want to be assigned before any assignment has been made and before the para has a legitimate educational interest to access that data or information. In a smaller District like Virginia the paraprofessionals all know who worked with disabled students from previous years and which students are assigned to which case managers. What then happens is that the para is able [sic] self-assign to a student who may have fewer needs requiring less para time and effort, rather than the assignment being made by District administration and special education supervisors based upon whom they feel is best suited to meet the needs of the student.</p> <p class="opinion_quote">Since the legitimate educational interest only applies to school district employees and officials after an assignment has been made, the paraprofessionals would not be entitled to the case manager information and that which naturally flows from knowing that information until after an assignment has been made.</p> <p>34 C.F.R. section 99.7(a)(3)(iii) states that if a district has a policy of disclosing records under section 99.31(a)(1), the district must include in its annual notification to parents a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest. (For an in-depth discussion of the meaning of "school official" and legitimate educational interest, see <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267861" target="_blank">Advisory Opinion 05-022</a>.)</p> <p>According to the District, its bidding process allows paraprofessionals access to personally identifiable information about students and their disabilities without parental consent and "before the paraprofessional has a legitimate educational interest in receiving that information." The District stated, [n]either this District nor, to my knowledge, any other District in this area have identified their employees as public officials for purposes of allowing them access to private educational data.</p> <p>Here, as the District states, it has not identified paraprofessionals as school officials with a legitimate interest in receiving private educational data during the bidding process. For this reason, and based on guidance from the FPCO and prior advisory opinions, at the time paraprofessionals bid, they have not yet been assigned to work with the students and therefore do not yet have a legitimate educational interest in private data about the students and their disabilities, as is required under federal law. In addition, according to section 13.32, the paraprofessionals may have access to private educational data about students only if they have a work assignment that requires it, which they would not have during a bidding process. Accordingly, the District must remove the case managers' names and related data from the job postings.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, and federal law, Independent School District 706, Virginia, would improperly disclose private educational data if it included the names and other data related to individual case managers in a job posting to District paraprofessionals bidding for assignments.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: June 29, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2680182662662025-11-10T22:11:45Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266933" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-06-23T03:14:43Za newspaper reporter asked whether a city council properly closed a meeting pursuant to the attorney-client privilege exception to the Open Meeting Law (Minn. Stat. § 13D.05, subd. 3(b)). The Commissioner opined that the council had met the standard for closing the meeting because the council had been threatened with litigation and it needed absolute confidentiality to discuss the provisions of a proposed separation agreement.June 22, 2016, Motley City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>Brenda Halvorson of the <em>Staples World</em> newspaper requested an advisory opinion regarding Motley City Council (Council) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>Adam Ripple, attorney for the Council, submitted comments.</p> <p>The <em>Staples World</em> provided a summary of the facts as follows. The <em>Staples World</em> received notice of a special, closed meeting of the Motley Council.</p> <p>The notice stated:</p> <p class="opinion_quote">Notice is hereby given that the Motley City Council will meet in Closed Session on Monday, March 21st @ 6:30 p.m. The purpose of the Closed Session is for consideration of the following item:</p> <p class="opinion_quote">Discussion of a proposal of a separation agreement with City Clerk.</p> <p>The <em>Staples World</em> wrote:</p> <p class="opinion_quote">When we received the initial notice of [the March 21, 2016] closed meeting, the reason given did not seem to me to fit any of the exceptions to the Open Meeting Law. The reporter, Dawn Timbs, asked for the statute under which they were closing the meeting. The reply was received from [Council member] Hutchinson who forwarded an email from the council's labor attorney, Pamela Steckman of Rinke Noonan, St. Cloud, which read "The notice should state 'Closed Session under Minn. Stat. 13D.05, subd. 3.(b) [sic] attorney-client privileged discussion of potential separation agreement with city clerk.'"</p> <p>The newspaper challenged the closing of the meeting for a couple of reasons, including that the attorney/client privilege exemption did not apply to the March 21, 2016, meeting for the purpose stated in the notice. Neither the attorney nor the Council indicated there was any pending or threatened litigation when asked.</p> <hr /> <h2>Issue:</h2> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Motley City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a special meeting on March 21, 2016, on the basis of attorney-client privilege, Minnesota Statutes, section 13D.05, subdivision 3(b)?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>The Open Meeting Law requires most meetings of public bodies to be open. One exception to this general rule is that public bodies may close a meeting based on attorney-client privilege. (Minnesota Statutes, section 13D.05, subd. 3(b).)</p> <p>The Minnesota Supreme Court established the test for the appropriate application of the exception:</p> <p class="opinion_quote">To determine whether the attorney-client privilege exception to the Open Meeting Law applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law. The exception applies when this balancing dictates the need for absolute confidentiality.</p> <p><em>Prior Lake American v. Mader,</em> 642 NW2d 729, 732 (Minn. 2002) (<em>Prior Lake American</em>). (See also <em>Minneapolis Star and Tribune v. the Housing and Redevelopment Authority</em>, 251 NW2d 620 (Minn. 1976) (<em>HRA</em>).)</p> <p>The Court further held that because the exception only applies when absolute confidentiality is required, "the scope of the privilege is narrower for public bodies than it is for private clients." <em>Prior Lake American</em> at 737. And that the exception "would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency." <em>HRA</em> at 626.</p> <p>Additionally, the Commissioner has issued a number of advisory opinions on this exception. (See Advisory Opinion <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267583" title="Opinion 99 003" target="_blank">99-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267821" title="Opinion 14 005" target="_blank">14-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267821&quot;" title="Opinion 14 003" target="_blank">14-003</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267295" title="Opinion 14 017" target="_blank">14-017</a>.) <br /></p> <p>In response to the Commissioner, the Council wrote:</p> <p class="opinion_quote">At the closed meeting of March 21, 2016, the only item that was discussed was the terms of a proposed separation agreement. Issues had arisen with the clerk working for the City of Motley. Her attorney had threatened litigation. The proposed settlement agreement was meant to resolve the threatened litigation. However, before voting to bind the City to the separation agreement, the City Council had to be advised on the legal ramifications of the proposed terms. The City Council had to be offered advice on whether their legal position with regards to the threatened litigation put them in a position of strength or weakness. Absolute confidentiality was required for this limited discussion.</p> <p>The Council provided the Commissioner with additional information that was not available to the <em>Staples World</em> when it requested this advisory opinion: the City Clerk had retained an attorney and the attorney had threatened the City with litigation. While that information alone is not necessarily a justification to close a meeting, it does represent a significant factor in considering the need for absolute confidentiality.</p> <p>In weighing the purposes of the privilege, the Council wrote:</p> <p class="opinion_quote">This matter had taken the first steps towards litigation. The City needed frank legal advice outside the earshot of the potential opposing litigant. Absolute confidentiality between attorney and client was required under these circumstances to facilitate candid and open discussion between the City Council and the City Attorney regarding matters that could affect litigation, including defense strategy and possible areas of reconciliation.</p> <p>In weighing the purposes of the OML and the public's right to be informed, the Council determined:</p> <p class="opinion_quote">[T]he burden on the interest served by the [OML] is in this case very limited. The public was not deprived of any openly available facts which give rise to the preparation of a separation agreement. The only information the public missed by closing this meeting was the technical details of a legal document and the explanation thereof from the City's attorney [U]pon complete resolution of the claims, the final separation agreement will be approved at a public meeting and will become a public document. There is almost no detriment to the public in holding the limited closed session at issue, but there would be great harm to the public had the attorney-client privilege been waived and the meeting opened to the opposing party.</p> <p>The Commissioner agrees that the balancing test in these circumstances dictates the need for absolute confidentiality and therefore, the Council appropriately relied on the attorney-client privilege exception to the OML.</p> <p>The Commissioner offers the following additional guidance. Special meeting notices must include the time, date, place and purpose of the meeting. (Minnesota Statutes, section 13D.04, subdivision 2.) Here, the notice did not identify the "place" of the meeting. Also, it would have been helpful for the Council to include the fact that there was threatened litigation in the "purpose" portion of the notice, so that the <em>Staples World</em> - and the public in general - could identify and evaluate the authority to close the meeting more easily. Additionally, when closing a meeting, a public body must state on the record the grounds for closing the meeting and describe the subject to be discussed. (Minnesota Statutes, section 13D.01, subdivision 3; see also, <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471 (Minn. Ct. App. 2004).) The Commissioner encourages public bodies to make the required statement clearly and unequivocally. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267496" target="_blank">12-008</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-266458" target="_blank">14-014</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/index.jsp?id=36-267684" target="_blank">14-015</a>, where the Commissioner opines that public bodies should make the statement on the record in open session, prior to closing the meeting.)</p> <p>These provisions of the OML, while technical in nature, ensure that the public has some information in the limited circumstances, like those at issue here, where it is excluded from observing the discussion and activity of its public officials.</p> <hr /> <h2><u>Opinion:</u></h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Motley City Council complied with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a special meeting on March 21, 2016, on the basis of attorney-client privilege, Minnesota Statutes, section 13D.05, subdivision 3(b).</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: June 22, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2669332662852025-11-10T20:22:42Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266991" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-06-22T15:14:43Za member of the public asked whether a city council complied with the Open Meeting Law requirement to provide a summary of conclusions following a closed meeting for a performance evaluation (Minn. Stat. § 13D.05, subd. 3(a)). Because the council only discussed two salient points the closed session, and the summary given at the next open meeting included the conclusions of those two points, the Commissioner opined that the council had met the statutory requirements. June 22, 2016, Moorhead City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>John Rowell requested an advisory opinion regarding the Moorhead City Council (Council) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>John Shockley, Moorhead City Attorney, provided comments to the Commissioner, on behalf of the Council.</p> <p>Mr. Rowell provided the following summary of the facts. On March 21, 2016, the Council held a closed meeting to evaluate the City Manager's performance. The next meeting was a special meeting held on March 31, 2016. At that meeting, the Council went into closed session pursuant to attorney-client privilege, to discuss a separation agreement with the City Manager. After the closed portion of the meeting:</p> <p class="opinion_quote">Mayor Williams provided the following (oral) summary of the evaluation of the city manager: During this review, the City Council stated that it was very satisfied with the quality of the work performed by Mr. Redlinger. While the city has been very satisfied with the quality and quantity of the city manager's performance, a majority of the City Council and Mike Redlinger have mutually decided to enter into a separation agreement. The mayor's statement, which purports to summarize the Council's conclusions regarding an evaluation lasting more than two hours, required less than thirty seconds to utter. <strong>(The mayor's statement is on the video recording of the Council meeting of 3/31/16, available on the city's website, and is accurately quoted in the news article from The Forum, attached as Item 3.)</strong> [Original formatting.]</p> <p>(The Council submitted a copy of the recording with its materials. Mr. Rowell apparently submitted an edited transcript, as is noted below.)</p> <hr /> <h2>Issues:</h2> <p>Based on the opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Moorhead City Council comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the City Manager's performance evaluation at the March 31, 2016, special meeting?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to the Open Meeting Law, all meetings of a public body must be open to the public, except in limited circumstances. Minnesota Statutes, section 13D.05, subdivision 3(a) provides:</p> <p class="opinion_quote">A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.</p> <p>The Commissioner has discussed the requirement to summarize the conclusions of a performance evaluation in previous advisory opinions. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267635" target="_blank">99-018</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267659" target="_blank">02-035</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267675" target="_blank">15-002</a>.)</p> <p>In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266799" target="_blank">Advisory Opinion 02-021</a>, the Commissioner provided the following guidance:</p> <p class="opinion_quote">How a public body approaches the evaluation will determine exactly which data it should summarize. The public body should carefully review the specific points it established in reaching a conclusion about the performance evaluation. Clearly, the language of the Open Meeting Law indicates that the governing body ought to summarize each salient point of the evaluation so that the public is given the opportunity to get the best possible sense of the performance - good, bad, or indifferent - of the public employee.</p> <p>The Commissioner addressed the sufficiency of several evaluation summaries in <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266366" target="_blank">Advisory Opinion 14-007</a>:</p> <p class="opinion_quote">[In Advisory Opinions 99-018, 02-021, and 02-035] the Commissioner concluded that the following statements were insufficient to fulfill the public bodies' statutory obligations: "[the Board] discussed the superintendent's strengths and weaknesses"; "As a result of that review, strengths were noted and areas of improvement were defined. The board developed goals regarding communication and leadership"; and "areas of growth were identified and [the Superintendent's] evaluation is an ongoing process."</p> <p>In its submission to the Commissioner, the Council described its approach to the City Manager's evaluation:</p> <p class="opinion_quote">Historically, the City Manager's evaluation has been performed by the entire Moorhead City Council and conclusions about the City Manager's performance have been determined by a consensus of a majority of the City Council members participating in the performance review.</p> <p>According to the Council, at the March 21, 2016, meeting, all eight members of the Council and the Mayor participated. Each attendee at the meeting spoke on the subjects raised in the evaluation. The majority opinion became the conclusion on a particular point.</p> <p>Turning to the summary of conclusions here, in the recording of the March 31, 2016, open meeting, the Mayor read the following statement:</p> <p class="opinion_quote"><em>The City Council of the City of Moorhead met on March 21, 2016, and conducted a performance review of Michael J. Redlinger, the City Manager.</em> During this review, the City Council stated that it has been very satisfied with the quality and the quantity of work performed by Mr. Redlinger. <em>The City Council then discussed the administrative leadership of the City.</em> While the City has been very satisfied with the quality and quantity of the City Manager's performance, a majority of the City Council and Michael Redlinger have mutually decided to enter into a separation agreement in order to seek a change in leadership. Pursuant to the terms of the Employment Agreement between the City and Mr. Redlinger and the City's Personnel Policies, the City and Mr. Redlinger will enter into a Separation Agreement detailing the terms of the separation. [Italics indicate the differences between the evaluation summary as presented by Mr. Rowell and the complete statement on the recording as provided by the Council.]</p> <p>Regarding the summary, the Council wrote:</p> <p class="opinion_quote">The summary provided by Mayor Williams gave much greater detail on the contents of the performance evaluation, than those [at issue in previous advisory opinions], and covered the salient points of the performance evaluation. [Those opinions] are also distinguishable from the present case on the basis of the fact that the evaluation of the Moorhead City Manager was ended early because of the intent to enter into a separation agreement. First, only two prominent substantive issues were discussed during the executive session: (1) the general overall quality of Mr. Redlinger's work, and (2) how Mr. Redlinger fits within the City Council's vision regarding administrative leadership of the City.</p> <p>The Council discussed two salient points, came to a consensus on each of those points, and presented those two conclusions in its summary at the next open meeting. While the edited summary presented by Mr. Rowell seems similar to the summaries at issue in previous advisory opinions, upon consideration of the entire summary and the circumstances surrounding it (evaluation process and the truncated nature of the evaluation itself), the Commissioner concludes that the Mayor's statement complies with the requirement in section 13D.05, subd. 3(a)(1), to provide a summary of the conclusions.</p> <p>While the Council's summary was ultimately sufficient, the Commissioner reminds public bodies that the intent of the Open Meeting Law is, "to protect the public's right to full access to the decision-making process of public bodies. <em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729, 735 (Minn. 2002). Although not required by the Open Meeting Law, in unusual situations like this one (where the body's evaluation of the employee's performance - "very satisfied" - seems incongruous with the outcome of the evaluation - a separation agreement), the Council could have provided more information to foster a broader understanding of its activities and decisions.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Moorhead City Council complied with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the City Manager's performance evaluation at the March 31, 2016, special meeting.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: June 22, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2669912663652025-07-10T16:48:06Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267232" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2016-02-18T16:14:43Za school district asked about the classification of data in a Notice of Removal sent to a school board member who was also a former employee of the District. The Notice of Removal stemmed from a complaint against the individual in his capacity both as an employee and as a school board member. The District stated that it does not consider school board members to be employees for purposes of the Data Practices Act. The Commissioner opined that the data in the Notice of Removal are related to the individual’s conduct as a school board member and therefore are presumed public.February 18, 2016, ISD 911 (Cambridge-Isanti)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On December 17, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Maggie Wallner, attorney for Independent School District 911, Cambridge-Isanti (the District). In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding classification of certain data that the District maintains. The Commissioner asked for additional information, which Ms. Wallner provided on January 5, 2016.</p> <p>The Commissioner also wrote to Karen Kurth, attorney for the data subject, Mr. X, and offered her an opportunity to submit comments on Mr. X's behalf. Ms. Kurth replied on January 19, 2016.</p> <p>Ms. Wallner provided a summary of the facts. On December 17, 2015, she wrote:</p> <p class="opinion_quote">On or about October 5, 2015, the School District received complaints regarding Mr. "X", an employee (paraprofessional, assistant coach) and a member of the School Board. After an investigation was completed, the School District informed Mr. X that the complaints were substantiated and that there would be a recommendation to the School Board that his employment be terminated. Mr. X was also offered an opportunity to resign and he did so on November 13, 2015. No disciplinary action was taken; therefore, the only public data regarding the complaints against Mr. X in his status as a former employee is the existence and status of the complaints. Minn. Stat. [section] 13.43, Subd. 2(a).</p> <p>On January 5, 2016, Ms. Wallner wrote:</p> <p class="opinion_quote">[T]here is nothing to indicate that the allegations regarding Mr. "X" and/or the information provided in the course of the investigation was based solely on the fact that he is a member of the School Board; rather, both were reasons for the report, the investigation and for providing information to the School Board. In other words, the information was provided to the School District and eventually to the School Board because Mr. "X" was an employee <em>and</em> because he is a School Board member. This is not a situation where it is clear that "but for" Mr. "X's" status as an employee, the School Board would not have been provided the information.</p> <p class="opinion_quote">As stated in the School District's request for an opinion, Exhibit A to the School Board's Resolution is not public data under Minnesota Statutes, [section] 13.43 as it relates to Mr. "X's" status as a former employee. However, we assume that Exhibit A is public government data as it relates to Mr. "X's" status as a School Board member, <em>unless</em>, the classification under Minnesota Statutes [section] 13.43 (private personnel data) takes precedence over the otherwise public government data.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the data in the Notice of Proposed Removal, required under Minnesota Statutes, section 123B.09, that Independent School District 911, Cambridge-Isanti, sent to a School Board member who is also a former employee of the District?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on current and former employees, volunteers, and independent subcontractors. Subdivisions 2 and 3, classify some personnel data as public and subdivision 4 classifies all other personnel data as private.</p> <p>The existence and status of a complaint against an employee are public data. If there is a final disposition of disciplinary action against an employee, then the data documenting disposition, the specific reasons for the discipline and the basis for the discipline become public. (See section 13.43, subd. 2(a)(4) and (5).)</p> <p>In previously-issued advisory opinions, the Commissioner has consistently opined that the classification of data about elected officials depends upon whether the entity considers the elected official to be an employee. (See Advisory Opinions 03-011 and 12-018.) If so, the data are classified pursuant to section 13.43. If not, the data are public pursuant to the general presumption in section 13.03, subdivision 1. (Minnesota Statutes, section 13.601, classifies correspondence between elected officials and the public, but that provision is not relevant here.)</p> <p>Ms. Wallner wrote that the District does not consider school board members to be employees of the school district.</p> <p>On behalf of the data subject, Ms. Kurth also argued that the data about Mr. X as a school board member are presumptively public.</p> <p>Regarding members of a school board, Minnesota Statutes, section 123B.09, subdivision 9, provides:</p> <p class="opinion_quote">The board may remove, for proper cause, any member or officer of the board and fill the vacancy; but such removal must be by a concurrent vote of at least four members, at a meeting of whose time, place, and object the charged member has been duly notified, with the reasons for such proposed removal and after an opportunity to be heard in defense against the removal.</p> <p>Here, the data in the Notice of Proposed Removal, required by section 123B.09, relate to Mr. X as a school board member and not as a former employee of the District. Because the District has determined that its board members are not employees for purposes of the Chapter 13, data about board members are presumptively public, and therefore, the data in the Notice are public.</p> <p>The data related to the complaint against Mr. X as a District employee and maintained by the District, however, are classified pursuant to section 13.43. There was no final disposition of disciplinary action. Therefore, the only public <em>personnel</em> data related to the complaint against Mr. X, are the existence and status of the complaint (i.e., a complaint exists and the status is closed/resolved). Though this seems like it is an unusual result, it is nonetheless, the result dictated by the statutes.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Wallner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The data in the Notice of Proposed Removal, required under Minnesota Statutes, section 123B.09, that Independent School District 911, Cambridge-Isanti, sent to a School Board member who is also a former employee of the District, are public.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: Ferbruary 18, 2016</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2672322667722022-01-18T19:18:50Z266258266375266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267292" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-12-22T16:14:43Za county asked whether it could classify certain appraisal data as confidential or protected nonpublic under Minnesota Statutes, section 13.39. A county prepared a second appraisal for a condemnation/eminent domain action. The Commissioner opined that because the proceeding was the type of civil legal action contemplated by section 13.39, and the chief attorney had determined that the action was pending, the County could temporarily classify the appraisal as not public while the civil legal action was pending.December 22, 2015, Washington County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On November 8, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Richard Hodsdon, attorney for Washington County (County). In his letter, Mr. Hodsdon asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the County maintains. The Commissioner asked for additional information, which Mr. Hodsdon provided on December 1, 2015.</p> <p>The Commissioner wrote to David Snyder, attorney for the data requester, and offered him an opportunity to submit comments. The Commissioner received his comments on December 2, 2015.</p> <p>Mr. Hodsdon provided a summary of the facts as follows:</p> <p class="opinion_quote">Washington County commenced an action in eminent domain pursuant to Minnesota Statute [<em>sic</em>] Chapter 117 and as required by law obtained an independent appraisal. That independent appraisal was provided to the owner of the subject property as part of the negotiation and pre-condemnation process. That appraisal is not at issue here. However Washington County and the owner were unable to negotiate a resolution of the matter and the case proceeded through the eminent domain process including a hearing before a panel of condemnation commissioners. Rather than utilize and introduce the first appraisal as evidence in the condemnation proceeding the Washington County Attorney's Office directed Washington County Public Works to obtain a second appraisal, which was obtained solely for the purpose of litigating the eminent domain civil legal action.</p> <p class="opinion_quote">The eminent domain action took place. The appraisal was introduced into evidence before the commissioners but was never filed in the district court because the Commissioner Award was not appealed to the district court. However the size of the ultimate award was such that the owner and his attorney are now seeking a substantial award in addition to the value of the taking in the form of attorney's fees and costs. That litigation claim is pending before the district court with a hearing to take place in January, 2016. The Washington County Attorney's office believes that one of the items that may be introduced into evidence at the hearing relevant to the litigation of the attorney fee award and costs is the appraisal it presented to the eminent commissioners.</p> <p class="opinion_quote">The request has now been made for a copy of that appraisal and the person making the request contends under Minnesota Statute [<em>sic</em>] [section] 13.44, subd. 3 because the document was submitted to a condemnation commissioner its confidential status should now be changed to make it public.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Hodsdon's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, may the Washington County Attorney's Office classify an appraisal as confidential or protected nonpublic under Minnesota Statutes, section 13.39?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.44, subdivision 3(a), classifies appraisals made for the purposes of the purchase or condemnation of land by a government entity as confidential or protected nonpublic. Not public appraisal data may become public under certain circumstances, one of which is submission to a court-appointed condemnation commissioner. (See subdivision 3(c).)</p> <p>Minnesota Statutes, section 13.39, allows government entities to classify data as confidential or protected nonpublic when there is a pending civil legal action. Subdivision 1, provides that a "pending civil legal action includes, but is not limited to, judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the government entity."</p> <p>Here, an eminent domain matter advanced through negotiations, a court-appointed panel of commissioners, and is now in district court. The broad and express definition of "pending civil legal action" encompasses this type of proceeding.</p> <p>The next question is whether the chief attorney acting for the entity has determined that the civil legal action is pending. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267831" target="_blank">Advisory Opinion 99-016</a>.) Here, Mr. Hodsdon provided a letter from Washington County Attorney Peter Orput, who wrote: "I have determined this appraisal is part of a case that is still an open, active, and in pending litigation as that term is used in Minnesota Statutes [section] 13.39."</p> <p>On behalf of the data requester, Mr. Snyder argued that because the appraisal data are classified as public pursuant to section 13.44, subd. 3, section 13.39 is not applicable. The Commissioner has previously opined on the operation of section 13.39 (see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267726" target="_blank">Advisory Opinions 94-006</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267837" target="_blank">95-048</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267385" target="_blank">98-017</a>) and in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267385#/detail/appId/1/id/267410" title="99-029" target="_blank">Advisory Opinion 99-029</a>, he stated, "whether data may be classified as civil investigative data is substantially the discretion of the government entity's chief attorney." Because the chief attorney for Washington County determined that there is a pending civil legal action, of the type defined by section 13.39, the County may temporarily classify public appraisal data as confidential and/or protected nonpublic. Pursuant to section 13.39, subdivision 3, once the data become inactive or become part of a court record, the data will become public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Hodsdon raised are as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Washington County Attorney's office may classify public appraisal data as confidential and/or protected nonpublic pursuant to Minnesota Statutes, section 13.39.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: December 22, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2672922665072663762022-01-18T19:19:49Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267270" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-11-10T16:14:43Za city asked about the classification of data in a draft investigation report about a former city public official. The Commissioner opined that all data related to the complaint or charge in the report are public because the public official resigned before the city finished the report and because the former public official released the city from all claims stemming from the complaint, under Minnesota Statutes, section 13.43, subd. 2(e) and (f). The Commissioner further opined that the city could not enter into an agreement with the data subject to restrict access to public data, per section 13.43, subd. 10.November 10, 2015, City of Hastings36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On October 1, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Margaret Skelton, attorney for the City of Hastings. In her letter, Ms. Skelton asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the City maintains. <br /></p> <p>The Commissioner also wrote to John Fabian, attorney for the data subject, and offered him an opportunity to submit comments on her behalf. Mr. Fabian referred the Commissioner to his comments to the City, which Ms. Skelton included in the City's opinion request. <br /></p> <p>Ms. Skelton provided a summary of the facts as follows:</p> <p class="opinion_quote">Charlene Stark began working for the City as its Assistant Finance Director and was later promoted to Finance Director. On or about July 7, 2015, the City Administrator received a complaint about Ms.Stark. Following the investigation, the City Administrator prepared a draft investigation report. <br /></p> <p class="opinion_quote">After the investigation was concluded, but before the report was completed, Ms. Stark resigned. The City Council accepted her resignation at its September 21, 2015, meeting. No disciplinary action was pending or proposed at the time of her resignation. The investigation report was never finalized. <br /></p> <p class="opinion_quote">On or about September 21, 2015, the City received the first request from the media for data related to the complaint against Ms. Stark. The City provided a redacted copy of the initial complaint and an audit conducted by the City in response to the complaint. However, the City did not provide a copy of the draft investigation report based upon an objection by Ms. Stark's attorney. [Citations and notes omitted.]</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Skelton's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol type="1" start="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, are data in a draft investigation report prepared by the City of Hastings about a local public official, as designated by Minnesota Statutes section 13.43, subdivision 2(e)(4), government data?</li> <li>If the answer to question 1 is yes, how are the data in the report classified?</li> <li>If the data in the draft report are classified as public, can the City agree to the data subject's proposed redactions prior to the release of the report?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong><em>Issue 1.</em></strong> <em>Pursuant to Minnesota Statutes, Chapter 13, are data in a draft investigation report prepared by the City of Hastings about a local public official, as designated by Minnesota Statutes section 13.43, subdivision 2(e)(4), government data?</em> <br /></p> <p>Minnesota Statutes, section 13.02, subd. 7, defines government data as, "all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use." Minnesota Statutes section 13.43, subdivision 1 defines personnel data as "government data on individuals." Subdivision 2 of that section classifies certain "personnel data" as public, and includes the data described in paragraphs 2(e) and (f). <br /></p> <p>In his comments to the City on behalf of Ms. Stark, Mr. Fabian argued that the term "data" as used in section 13.43, subd. 2(e) and (f), is not defined, and therefore should be interpreted using a plain language analysis. Relying on a dictionary definition of "data" that omits the statutory definition of "government data," he concluded that the data in the investigation report cannot be disclosed. <br /></p> <p>The Commissioner is not persuaded by Mr. Fabian's argument. Section 13.43, clearly defines personnel data as government data, both of which are defined terms in Chapter 13. Section 13.43, subdivision 2, specifically states "the following <em>personnel data</em> are public" and then goes on to describe the public elements, including paragraphs 2(e) and (f). Therefore, the data at issue here are government data. <br /></p> <p><strong><em>Issue 2.</em></strong> <em>If the answer to question 1 is yes, how are the data in the report classified?</em> <br /></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. <br /></p> <p>Section 13.43, subd. 2(e), provides that <em>all data</em> related to a complaint or charge against certain local public officials are public, subject to the conditions in paragraph (f). A local public official includes directors of departments, divisions, bureaus, or boards of a city or county with more than 7,500 people. <br /></p> <p>Paragraph (f) provides: <br /></p> <p class="opinion_quote">Data relating to a complaint or charge against an employee identified under paragraph (e), clause (4), are public only if:</p> <p class="opinion_quote">1. the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending; or</p> <p class="opinion_quote">2. potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement.</p> <p class="opinion_quote">This paragraph and paragraph (e) do not authorize the release of data that are made not public under other law. <br /></p> <p>On behalf of the City, Ms. Skelton wrote: <br /></p> <p class="opinion_quote">As the City's Finance Director, Ms. Stark was a public official" for purposes of the Minnesota Government Data Practices Act. <em>See</em> Minn. Stat. sect 13.43, subd. 2(e)(4)(iii) Therefore, the draft investigation report must be classified in accordance with Minnesota Statutes, section 13.43, subdivision 2(e) and (f). <br /></p> <p class="opinion_quote">The investigation against Ms. Stark was complete prior to her resignation. The underlying complaint or charge, however, had not been resolved before she resigned. Therefore, it would appear that the complaint or charge was "pending" at the time of the resignation. Moreover, the written resignation agreement contained a release of all claims arising out of Ms. Stark's employment with the City. Therefore, it appears that "all data" regarding the complaint or charge against Ms. Stark, including the incomplete draft of the investigation report, are public. [Citations omitted.] <br /></p> <p>The Commissioner agrees with the City's analysis. It is clear that the investigation report is in draft form and is not final. So, while the investigation was complete, the complaint or charge was still pending when Ms. Stark resigned. Therefore, all data related to the complaint become public pursuant to section 13.43, subd. 2(e) and (f)(1). <br /></p> <p>Moreover, section 13.43, subd. 2(f)(2), provides that when a local public official releases potential legal claims related to the complaint or charge, all data related to the complaint or charge become public. The City provided the Commissioner with a copy of Ms. Stark's resignation agreement. <br /></p> <p>The agreement states: <br /></p> <p class="opinion_quote">Release of All Claims. In consideration of the amount paid pursuant to Paragraph 2 of this Agreement, Ms. Stark, on behalf of herself and her heirs, successors, or assigns, hereby releases, acquits, and forever discharges the City from any and all liability for any and all damages, actions, or claims that arise out of or relate to any action, decision, event, fact, or circumstance occurring before Ms. Stark signs this Agreement. Ms. Stark understands and agrees that by signing this Agreement she is waiving and releasing any and all claims, complaints, causes of action, and demands of any kind that are based on any contractual provision or federal or state law, including but not limited to any constitution, statute, regulation, rule, or common law. [Emphasis omitted.] <br /></p> <p>All data related to the complaint about Ms. Stark became public data when Ms. Stark resigned while the complaint was pending. The data are also public because Ms. Stark released the City from all claims related to the complaint. Therefore, the data in the draft investigation report are public, except for data otherwise classified as not public (e.g., private personnel data about other employees). <br /></p> <p><strong><em>Issue 3.</em></strong> <em>If the data in the draft report are classified as public, can the City agree to the data subject's proposed redactions prior to the release of the report?</em><u><br /></u></p> <p><u>Section 13.43, subdivision 10(a), provides: <br /></u></p> <p class="opinion_quote">A government entity may not enter into an agreement settling a dispute arising out of the employment relationship with the purpose or effect of limiting access to or disclosure of personnel data or limiting the discussion of information or opinions related to personnel data. An agreement or portion of an agreement that violates this paragraph is void and unenforceable.</p> <p>Therefore, the City may not enter into an agreement to redact or otherwise restrict access to the public data in the report.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Skelton raised are as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol type="1" start="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, the data in a draft investigation report prepared by the City of Hastings about a local public official, as designated by Minnesota Statutes section 13.43, subdivision 2(e)(4), are government data.</li> <li>The data in the draft investigation report are classified as public (unless otherwise classified as not public) because Ms. Stark resigned while the complaint was pending and because she released all claims arising out of the conduct that is the subject of the complaint.</li> <li>Because the data are public, the City may not agree to redact or otherwise restrict access to draft investigation report, pursuant to Minnesota Statutes, section 13.43, subdivision 10.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: November 10, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2672702668732023-01-10T14:22:54Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268030" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-11-05T16:14:43Z a school district asked whether Minnesota Statutes, section 122A.41, subd. 6(c), requires sharing certain private personnel data with another district. That subdivision states that under certain circumstances, a school district must disseminate private personnel data, “[u]nless restricted by … state data practices law….” The Commissioner opined that despite the apparent objective of that provision, the district may not share private personnel data with a requesting district because the Data Practices Act is a “state data practices law” that restricts disclosure of private data.November 5, 2015; ISD 535 (Rochester)36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><p /><h2> Facts and Procedural History: </h2><p> On August 7, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Michael J. Waldspurger and John P. Edison, attorneys for Independent School District 535, Rochester. In their letter, Mr. Waldspurger and Mr. Edison asked the Commissioner to issue an advisory opinion regarding certain data that the District maintains. Mr. Waldspurger and Mr. Edison provided additional information on August 26 and September 22, 2015. </p><p> IPAD wrote to Brenda Cassellius, Commissioner of the Minnesota Department of Education (MDE), and Denise Specht, President of Education Minnesota, to offer them an opportunity to submit comments on the issues the Commissioner will address. IPAD received comments from Commissioner Cassellius on October 13 and from Lisa Needham, attorney for Education Minnesota, on October 12, 2015. </p><p> Mr. Waldspurger and Mr. Edison provided a summary of the facts as follows. The District terminated a teacher's employment. Subsequently, MDE issued a substantiated finding of maltreatment involving the former teacher based on conduct that occurred while the District employed the teacher. </p><p> A school in another state has asked the District for certain private personnel data related to the former teacher's employment at the District. </p><hr /><h2> Issues: </h2><p> Based on Mr. Waldspurger and Mr. Edison's opinion request, the Commissioner agreed to address the following issues: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol start="1" type="1"><li> Pursuant to Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 122A.41, subdivision 6(c), is Independent School District 535, Rochester, obligated to share private personnel data with a requesting district? </li></ol><ol start="2" type="1"><li> If the answer to Issue one is yes, must the District share private personnel data in circumstances other than "[w]hen a teacher is discharged under paragraph (b) or when the commissioner makes a final determination of child maltreatment involving a teacher under Minnesota Statutes, section 626.556, subdivision 11"? </li></ol></td></tr></tbody></table><hr /><h2> Discussion: </h2><p><strong><em>Issue 1</em></strong><em>. Pursuant to Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 122A.41, subdivision 6(c), is Independent School District 535, Rochester, obligated to share private personnel data with a requesting district?</em></p><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. </p><p> Minnesota Statutes, section 122A.41, subdivision 6(c), in relevant part, provides that when a teacher is immediately discharged following license revocation, or when the Commissioner (of MDE) makes a final determination of child maltreatment involving a teacher then: </p><p class="opinion_quote"> [<em>u</em>]<em>nless restricted by</em> federal or <em>state data practices law</em> or by the terms of a collective bargaining agreement, the responsible authority for a school district must disseminate to another school district private personnel data on a current or former teacher employee if the requesting school district seeks the information because the subject of the data has applied for employment with the requesting school district. [Emphasis added.] </p><p> Mr. Waldspurger and Mr. Edison explained the District's position: </p><p class="opinion_quote"> The District's first question relates to the meaning of the phrase "unless restricted by federal or state data practices law" in the last sentence of Section 122A.41, subdivision 6(c). The District's position is that a "state data practices law" includes the provisions of [Minnesota Statutes, Chapter 13] and that the District may not disclose "private personnel data" to another school district in which a current or former employee is seeking employment unless the disclosure would be permitted under [Chapter 13]. </p><p class="opinion_quote"> Under the cannons of statutory construction, the "legislature intends the entire statute to be effective and certain." Minn. Stat. section 645.17(2). Moreover, when Minnesota courts engage in statutory interpretation, the "touchstone" of statutory construction is a statute's plain meaning. <em>See, e.g., Krueger v. Zeman Canst. Co., </em>758 N.W.2d 881,885 (Minn. App. 2008). Courts also "consider all words and phrases in the statutory language when possible so that none is deemed superfluous." <em>Id.</em></p><p class="opinion_quote"> Turning to Section 122A.41, subdivision 6(c), the requirement that a school district provide "private personnel data" to another school district in which a current or former employee is seeking employment is prefaced by the following: "[u]nless restricted by federal or state data practices law or by the terms of a collective bargaining agreement." The exception in the statutory language for a "state data practices law" would, as a practical matter, be superfluous for Minnesota school districts if Section 122A.41, subdivision 6(c) is to be read as an exception to any restrictions on the disclosure of data outlined in [Chapter 13]. </p><p class="opinion_quote"> In light of the absence of any indication that the MDGPA is not to be considered a "state data practices law" as the phrase is used in Section 122A.41, subdivision 6(c), the District's position is that Section 122A.41, subdivision 6(c) does not create an exception to the provisions of [Chapter 13] and that the District may not disclose "private personnel data" to another school district under this statutory provision if the disclosure would not be permitted by [Chapter 13], particularly Minnesota Statutes section 13.43. </p><p> Mr. Waldspurger and Mr. Edison further asserted that Minnesota Statutes, section 13.43, subdivision 16, is not applicable because that subdivision requires a school district to release private personnel data in certain circumstances under which a teacher resigns. Here, because the district terminated the teacher's employment, the Commissioner agrees this provision is not applicable. </p><p> Commissioner Cassellius commented: </p><p class="opinion_quote"> While MDE is commonly asked to apply [Chapter 13] when processing data requests and managing its own data, MDE has little expertise applying the personnel data provisions of [Chapter 13] at the district level. Disputes over teacher personnel data are typically local matters in which MDE is not involved. Therefore, we believe Admin is in the best position to analyze the facts of this matter and apply the provisions of [Chapter 13] to them. We defer to the expertise of IPAD and Admin as to whether Rochester is required to provide data about the maltreatment incident to the requesting district under 121A.41 [sic], subd. 6. </p><p> Ms. Needham wrote that given the facts the District presented here (i.e., the Districted terminated the teacher's employment), "Education Minnesota agrees that the District may not reveal private data about a teacher in response to an inquiry from an out-of-state district regarding an application for employment. Providing that data would be in violation of [Chapter 13]." </p><p> The Commissioner concurs with the District's analysis. Under a plain language reading of section 122A.41, subdivision 6(c), the final sentence prohibits a school district from disseminating private personnel data on a current or former teacher to another school district, despite its apparent objective. The District cannot share private personnel data with a requesting district, because Chapter 13 is a "state data practices law" that restricts disclosure of private data. Thus, the answer to Issue 1 is "no". </p><p> (However, the Commissioner notes that because the District terminated the teacher's employment, it does maintain public personnel data on the former teacher, i.e., the specific reasons for and data that document the basis of the disciplinary action, per section 13.43, subdivision 2(a)(5).) </p><p><strong><em>Issue 2</em></strong><em>. If the answer to Issue one is yes, must the District share private personnel data in circumstances other than "[w]hen a teacher is discharged under paragraph (b) or when the commissioner makes a final determination of child maltreatment involving a teacher under section 626.556, subdivision 11"?</em></p><p> See Issue 1. </p></dd><dd><hr /><h2> Opinion: </h2><p> Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Waldspurger and Mr. Edison raised are as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol start="1" type="1"><li> Pursuant to Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 13.43, subdivision 4, Independent School District 535, Rochester, cannot share private personnel data with a requesting district. </li></ol><ol start="2" type="1"><li> See Issue 1. </li></ol></td></tr></tbody></table><p><br /> Signed: </p><p> Matthew Massman <br /> Commissioner </p><p class="date"> Dated: November 5, 2015 </p><hr /><br /><p /></dd></td></tr><tr><td align="left" valign="top" /></tr></tbody></table></body></div>2680302665872667402022-01-18T19:19:49Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267317" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-10-01T15:14:43ZThe Minnesota Film and TV Board asked whether it was subject to Minnesota's Open Meeting Law. The Commissioner opined that the Board is not subject to the law because it is not a State board, pursuant to Minnesota Statutes, section 13D.01, subd. 1(a). The Board was not created by the Legislature; it is a private corporation. Its members and staff are not appointed by the government and its meetings are governed by the Board’s bylaws.October 1, 2015; Minnesota Film and TV Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2015). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On August 12, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Lucinda Winter, Executive Director of the Minnesota Film and TV, dated same. In her letter, Ms. Winter asked the Commissioner to issue an advisory opinion as to whether the Board is subject to Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>The Commissioner also wrote to Katie Clark Sieben, the Commissioner of the Department of Employment and Economic Development. Commissioner Sieben did not provide comments to the Commissioner of Administration.</p> <p>A summary of the facts as provided by Ms. Winter follows:</p> <p class="opinion_quote">The Minnesota Film and TV Board is requesting an [OML] advisory opinion because we occasionally receive requests from members of the public to attend our monthly board of directors meetings and we just don't know whether our organization is subject to the Minnesota [OML]. Several of our board members have requested that we seek an opinion from the state regarding that question.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Winter's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Is the Minnesota Film and TV Board subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>State bodies subject to the OML are listed in Minnesota Statutes, section 13D.01, subdivision 1(a), which provides:</p> <p class="opinion_quote">All meetings, including executive sessions, must be open to the public <br /> (a) of a state <br /> (1) agency, <br /> (2) board, <br /> (3) commission, or <br /> (4) department, <br /> when required or permitted by law to transact public business in a meeting; . . . .</p> <p>In her opinion request, Ms. Winter wrote:</p> <p class="opinion_quote">The Minnesota Film and TV Board is a private, non-profit corporation registered with the Minnesota Secretary of State. Acting as the state's film commission, its purpose is to support and facilitate the film and television industry and production in the state. For example, the board helps producers find Minnesota acting talent and crew members who work in the industry. It also helps producers identify filming locations and obtain permits to film in specific locations.</p> <p class="opinion_quote">The organization was incorporated in 1979, functioning with small private contributions and a volunteer staff until the state began funding board operations in the fall of 1983. For the past several years, the Legislature has granted $325,000 per year from the general fund for board operations. The board must match $1 from non-state sources-either in cash or in kind-for every $3 of state funding.That funding is included in omnibus economic development appropriation bills. Currently, the Department of Employment and Economic Development (DEED) provides oversight for state grants to the board. There is no Minnesota statute which created our office or governs its mission and activities. In addition to the program oversight provided by DEED, an 18 member volunteer board of directors meets regularly to provide fiscal oversight and strategic advice and set organizational goals.</p> <p>The Commissioner has previously considered whether certain bodies are subject to the OML. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267648" title="08-018" target="_blank">Advisory Opinion 08-018</a>, the Commissioner opined that the Drug Formulary Committee at the Department of Human Services (DHS) is subject to the OML, pursuant to section 13D.01, subdivision 1(a). The Legislature created the Committee, established its responsibilities, set the qualifications for its members, and gave the Commissioner of DHS the authority to appoint those members. Moreover, the Commissioner (of Administration) concluded the statute required the Committee to transact public business.</p> <p>By contrast, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267449" title="04-001" target="_blank">Advisory Opinion 04-001</a>, the Commissioner determined that the Minnesota FAIR Plan Board is not subject to the OML, despite having enabling legislation and some members appointed by the Commissioner of Commerce. The Commissioner (of Administration) based his decision on the Minnesota Supreme Court case in <em>Southern Minnesota Municipal Power Agency v. Boyne</em>, 578 N.W. 2d 362 (Minn. 1998). In that case, the Court held that Southern Minnesota Municipal Power Agency was not subject to the OML because the enabling legislation creating the Agency specifically stated that it would operate as a private corporation. Similarly, the Fair Plan Board consists of private parties and is administered for the benefit of private parties. As such is not a state public body within the meaning of section 13D.01, subd. 1(a).</p> <p>Here, the Minnesota Film and TV Board is a private corporation, operated by private volunteers and staff, for the benefit of the film and TV industry. The Board was not created by the Legislature. Its members are not appointed by any government entity or official. Per the Board's bylaws, existing members of the Board elect new members and the Board determines the number of members on an annual basis. (See Article 4 of the Restated Bylaws of Minnesota Motion Picture and Television Board, adopted 11/18/99.) Board meetings, including quorum requirements, notice provisions, and voting procedures, are also governed by the bylaws. (See Article 2 of the Bylaws.)</p> <p>Therefore, like the FAIR Plan Board and the Southern Municipal Power Agency, the Minnesota Film and TV Board is not a State board within the meaning of section 13D.01, subd. 1(a)((2), and thus, not subject to the OML.</p> <p>The Commissioner notes that while the Board is not subject to the OML, the Board does have some obligations under the Data Practices Act, Minnesota Statutes, Chapter 13, as a grantee of the Department of Employment and Economic Development and related to its administration of the film production jobs program. (See Minnesota Statutes, section 116U.26).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Winter raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Minnesota Film and TV Board is not subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: October 1, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2673172665722022-01-18T19:19:48Z266258266279266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267771" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-05-21T15:14:43Z A member of the public asked about a government contractor’s obligation to respond to a request for data the contractor maintained in connection with its work for a City. The contractor did not respond to the request. The Commissioner opined that pursuant to Minnesota Statutes, section 13.05, subdivision 11, and the clause in the contract, the contractor was subject to Minnesota Statutes, Chapter 13, for purposes of data created and maintained under the contract. Because Chapter 13 required the contractor to respond to a data request in a prompt and reasonable amount of time, the contractor did not comply. May 21, 2015; Foth, Inc. (Bloomington)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On March 30, 2015, the Information Policy Analysis Division (IPAD) received a letter dated March 25, 2015, from John Kysylyczyn. In his letter, Mr. Kysylyczyn asked the Commissioner to issue an advisory opinion about his right to gain access to certain data maintained by Foth Infrastructure and Environment, LLC (Foth), a contractor with the City of Bloomington. IPAD asked Mr. Kysylyczyn to provide clarification, which he did on April 8, 2015.</p> <p>IPAD, on behalf of the Commissioner, wrote to Dan Krivit, Senior Project Manager at Foth in response to Mr. Kysylyczyn's request. The purposes of this letter, dated April 16, 2015, were to inform him of Mr. Kysylyczyn's request and to ask him to provide information or support for Foth's position. On May 1, 2015, IPAD received a response, dated same. IPAD also wrote to Jamie Verbrugge, Bloomington City Manager, and invited him to provide comments on behalf of the City of Bloomington. The City did not submit comments.</p> <p>A summary of the facts as Mr. Kysylyczyn provided them follows. He wrote:</p> <p class="opinion_quote">Since the beginning of 2015, I have filed numerous information requests with the City of Bloomington to review communications related to city council efforts to change their trash hauling system.</p> <p class="opinion_quote">In 2013, the city retained Dan Krivit with Foth Infrastructure and Environment, LLC as their professional consultant for this effort</p> <p class="opinion_quote">On February 20, 2015, I filed a public information request with the city to review a spreadsheet of Bloomington city data that Mr. Krivit stated in emails that he was maintaining in his office</p> <p class="opinion_quote">I received a response from City Clerk Janet Lewis on February 20, 2015 that this spreadsheet was not in the possession of city staff. They informed me that it resided with Forth Companies and provided me their contact information.</p> <p class="opinion_quote">On February 23, 2015, I sent a written public information request through email directly to Dan Krivit at Foth Companies. I asked to review this spreadsheet along with additional information.</p> <p class="opinion_quote">The data I am requesting is from a singular project which has been broken up into four phases. I am in possession of two contracts representing what I believe is the first phase of the project, and a second contract that is clearly labeled as the third phase of the project Both contracts clearly state that the contractor is obligated to comply with the Minnesota Government Data Practices Act</p> <p class="opinion_quote">It has been over six weeks since I have submitted my information requests to Mr. Krivit. He has failed to make any attempt to contact me or respond to my information request.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Kysylyczyn's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, did Foth Infrastructure and Environment, LLC respond appropriately to a request for data related to Foth's contracts with the City of Bloomington to create and implement a solid waste management process?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from a requester who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) In responding, an entity must provide the data, advise that the data are classified such that the requester cannot have access, or inform the requester that the data do not exist.</p> <p>When a private party enters into a contract with a government entity to perform any of its functions, the private party must comply with Minnesota Statutes, Chapter 13, in carrying out its duties related to the contract. Minnesota Statutes, section 13.05, subdivision 11, provides:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and <em>the private person must comply with those requirements as if it were a government entity</em>. All contracts entered into by a government entity must include a notice that the requirements of this subdivision apply to the contract. Failure to include the notice in the contract does not invalidate the application of this subdivision. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract. [Emphasis added.]</p> <p>Mr. Kysylyczyn submitted two contracts between Bloomington and Foth to the Commissioner. Both contracts include the following clause:</p> <p class="opinion_quote">Minnesota Government Data Practices Act. The Contractor [Foth] will comply with all applicable provisions of the Minnesota Government Data Practices Act, Chapter 13 of the Minnesota Statutes, as amended.</p> <p>Because Foth entered into a contract with the City of Bloomington to create and implement a solid waste management process, Foth must comply with Chapter 13 as though it is a government entity with regard to data that Foth creates, collects, receives, stores, uses, maintains, or disseminates related to its contractual duties. Responding to data requests is one of the requirements to comply with Chapter 13.</p> <p>Mr. Kysylyczyn first requested the data at issue from the City of Bloomington. The City responded that it did not maintain the data and that Mr. Kysylyczyn should request it from Foth.</p> <p>In <em>WDSI, INC. v. County of Steele</em>, 672 N.W.2d 617, 621-622 (Minn. Ct. App. 2003), the Court of Appeals held:</p> <p class="opinion_quote">If a private party fails to comply with the MGDPA, the remedy is against the private party. The statute does not suggest that a governmental entity that does not possess the requested data must informally execute that remedy by obtaining the data from the private party. It appears undisputed that Steele County does not have the data; thus, KKE is the party against whom WDSI needs to seek its MGDPA remedy. [Citation omitted.]</p> <p>Therefore, pursuant to <em>WDSI</em>, the City properly directed Mr. Kysylyczyn to request the data from Mr. Krivit. On February 23, 2015, Mr. Kysylyczyn sent a data request to Mr. Krivit for the following:</p> <p class="opinion_quote">I would like to review all internal correspondence, documents, emails, etc, between employees or consultants of your firm, or others in relation to your work for the City of Bloomington, from the beginning of your work with them until the date of this letter.</p> <p class="opinion_quote">I would also like to review your Excel spreadsheet with all of the citizen submitted haulers invoice data.</p> <p>Mr. Kysylyczyn stated that he has not received a response from Foth. The Commissioner has issued a number of opinions stating that no response is not a proper response. (See Advisory Opinions 01-024, 04-008, and 09-027) Here, Chapter 13 requires Foth to respond to requests for public data from members of the public in an appropriate and prompt manner and within a reasonable time and Foth has not done so. Therefore, Foth has not complied.</p> <p>While Mr. Krivit did not address the fact that Foth did not respond to Mr. Kysylyczyn's request, he did raise a number of issues related to the classification of the requested data and the Commissioner offers Foth the following guidance in fulfilling its duties under Chapter 13. Firstly, Mr. Krivit suggested that the data are confidential intellectual property, however, the Data Practices Act does not recognize a classification for "intellectual property" or "proprietary information." Secondly, Mr. Krivit asserted that some of the requested data might be classified as trade secret information, pursuant to Minnesota Statutes, section 13.37. The Commissioner notes that the threshold for classification of data as trade secret information under Chapter 13 is high. Before relying on that provision, the Commissioner encourages Foth to review both the language of section 13.37 and the following Advisory Opinions: <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267385#/detail/appId/1/id/267287" title="02-041">02-041</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267385#/detail/appId/1/id/267690" title="03-009" target="_blank">03-009</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267385#/detail/appId/1/id/267811" target="_blank">03-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586" title="05-024" target="_blank">05-024</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586#/detail/appId/1/id/267495" title="14-018" target="_blank">14-018</a>. Given the breadth and nature of Mr. Kysylyczyn's request, it seems unlikely that all of the requested data, if any, would qualify for classification under section 13.37. Finally, Mr. Krivit argued that Minnesota Statutes, section 115A.94, subdivision 4d, which governs the process of organized collection by local governments, also classifies the data at issue. However, while that section provides that "meetings and negotiations shall occur exclusively between licensed collectors and the city" for a limited amount of time and under limited circumstances, it does not classify data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Kysylyczyn raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, Foth Infrastructure and Environment, LLC did not comply with the requirement to respond to a request for data related to Foth's contracts with the City of Bloomington to create and implement a solid waste management process.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: May 21, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2677712662802663002022-01-18T19:19:48Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267675" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-05-07T15:14:43ZA member of the public asked if a City Council had complied with the Open Meeting Law (Minnesota Statutes, Chapter 13D) when closing two meetings to evaluate the performance of an individual subject to its authority (under Minnesota Statutes, section 13D.05, subdivision 3(a)). The Commissioner concluded that when a public body requires more than one closed session to do a performance evaluation, the proper procedure is to recess and continue a meeting, rather than holding two separate meetings. The Commissioner also opined that the Council’s summary of the evaluation was not timely and not sufficient.May 7, 2015; Edina City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 23, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Jennifer Janovy, dated February 22, 2015. In her letter, Ms. Janovy asked the Commissioner to issue an advisory opinion regarding the Edina City Council (Council) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). IPAD asked Ms. Janovy to provide additional information and clarification, which she submitted on March 16, 2015.</p> <p>On March 20, 2015, IPAD wrote to Mayor James Hovland, Chair of the Council. In its letter, IPAD informed Mr. Hovland of Ms. Janovy's request and gave the members of the Council an opportunity to explain their position. On April 2, 2015, IPAD received a response, dated same, from Roger Knutson, City Attorney.</p> <p>In her request for an advisory opinion, Ms. Janovy stated: "I am writing to request an Open Meeting Law advisory opinion related to how the Edina City Council handled the Edina City Manager's performance review in January 2015." According to Ms. Janovy's opinion request, the Council held two closed meetings, one on January 6, 2015, and one on January 20, 2015, to evaluate the performance of the City Manager. Specifically, Ms. Janovy asked whether the notice for the January 20, 2015, meeting was sufficient, whether the Council properly conducted the meetings, and whether the summary of the performance evaluation was sufficient.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Janovy's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Did the Edina City Council comply with Minnesota Statutes, section 13D.04, subdivision 2(a), regarding notice for the January 20, 2015, special meeting?</li> </ol> <ol start="2" type="1"> <li>Did the Edina City Council comply with Minnesota Statutes, Chapter 13D when it closed meetings on January 6, 2015, and January 20, 2015, pursuant to Minnesota Statutes, section 13D.05, subdivision 3(a), to evaluate the performance of an individual subject to its authority?</li> </ol> <ol start="3" type="1"> <li>Did the Edina City Council comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the City Manager's performance evaluation at the February 3, 2015, meeting?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong><em>Issue 1.</em></strong> <em>Did the Edina City Council comply with Minnesota Statutes, section 13D.04, subdivision 2(a), regarding notice for the January 20, 2015, special meeting?</em></p> <p>Any meeting that is not on the regular schedule of meetings on file at a public body's primary offices must be noticed as a special meeting. For a special meeting, a public body must post written notice of the date, time, place and purpose of the meeting on the principal bulletin board or the door of the usual meeting room at least three days before the meeting. (See Minnesota Statutes, section 13D.04, subdivision 2.) At issue here, is whether the stated purpose of the meeting was sufficient.</p> <p>The Commissioner has previously opined that a special meeting notice must provide detail about the purpose of the meeting. The public body's discussion is then confined to the purpose stated on the notice. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586#/detail/appId/1/id/267355" title="07-014" target="_blank">Advisory Opinions 07-014</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586#/detail/appId/1/id/267304" title="10-013" target="_blank">10-013</a>.) These requirements inform the public and also allow public bodies to fulfill the requirement to provide special meeting notice to individuals who specifically request notice about particular topics. (See section 13D.04, subdivision 2(d), and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586#/detail/appId/1/id/267471" title="04-004" target="_blank">Advisory Opinion 04-004</a>.)</p> <p>Here, the January 20, 2015, special meeting notice provided:</p> <p class="opinion_quote">THE CITY OF EDINA WITH THIS GIVES NOTICE that the Edina City Council will hold a closed work session for the purposes of completing the City Manager performance review, Tuesday, January 20, 2015, at 5:00 p.m. The work session will be held in the Community Room located on the second floor of Edina City Hall, 4801 West 50th Street, Edina, Minnesota. <br /> The work session will be closed to the public.</p> <p>In her opinion request, Ms. Janovy wrote:</p> <p class="opinion_quote">A discussion about an employment agreement may be incidental to a performance evaluation; however, the facts indicate that the primary purpose of the closed session was to review the City Manager's employment agreement. This conflicts with the meeting notice, which only provided notice of the performance evaluation. That the City Council intended to discuss the performance evaluation is not disputed.</p> <p>Mr. Knutson, on behalf of the Council, wrote:</p> <p class="opinion_quote">The meeting notice stated that the purpose of the closed meeting was "completing the City Manager performance review." As an integral part of that performance review the City Council discussed the City Manager's compensation and prospective extension of his employment agreement. These issues are directly linked to his performance.</p> <p>The Commissioner agrees with Mr. Knutson that it is reasonable for an evaluation of an employee's performance to include a discussion of the employee's continued employment and compensation. Therefore, "for the purposes of completing the City Manager performance review" provides adequate notice to identify the purpose of the special meeting.</p> <p><strong><em>Issue 2.</em></strong> <em>Did the Edina City Council comply with Minnesota Statutes, Chapter 13D when it closed meetings on January 6, 2015, and January 20, 2015, pursuant to Minnesota Statutes, section 13D.05, subdivision 3(a), to evaluate the performance of an individual subject to its authority?</em></p> <p>Section 13D.05, subdivision 3(a), provides, in part:</p> <p class="opinion_quote">A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting.</p> <p>Mr. Knutson wrote to the Commissioner:</p> <p class="opinion_quote">The Council did not complete its performance review discussion at the closed session meeting on January 6. The January 6 closed meeting was adjourned and a new closed session was held on January 20 to enable the Council to complete Mr. Neal's performance evaluationThe statute does not limit the number of closed meetings that can be held to evaluate an employee.</p> <p>The Commissioner has previously opined that when a public body must hold multiple closed sessions to evaluate an employee under its authority, it should recess and resume the meeting, rather than adjourning and holding subsequent closed meetings. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a> the Commissioner concluded:</p> <p class="opinion_quote">If the Board identified the superintendent as the employee about to be evaluated in July 2005, and if the meeting was recessed and resumed, then it appears that the Board has complied with section 13D.05, subdivision 3(a).</p> <p class="opinion_quote">If the Board did not identify the superintendent as the employee it was about to evaluate in July 2005, <em>or if the meeting was not recessed and resumed</em>, then the Board is not in compliance. [Emphasis added.]</p> <p>Here, the City Council convened and adjourned two separate closed meetings. Consistent with <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>, the City should have recessed or continued the closed session to evaluate the performance of the City Manager.</p> <p>Ms. Janovy also provided the Commissioner with a copy of a memo written by the City Manager following the January meetings. In it, he states that the Council met in closed session on January 6 to discuss his evaluation with the consultant hired to perform the review. Following that meeting, the Council tasked the City Manager with drafting a proposed employment agreement. The City Manager wrote:</p> <p class="opinion_quote">I met with Mayor Hovland and Council Member Swenson on January 9. I presented them a proposed employment agreement. They subsequently reviewed that proposal, and <em>then scheduled a closed session to review it with City Council Members on January 20</em>. HR Director Lisa Schaefer also attended the closed session to assist the Council's discussion about the proposed agreement. [Emphasis provided.]</p> <p>Ms. Janovy noted that the consultant who performed the review did not attend the second meeting.</p> <p>While these facts alone do not establish that the January 20 closed meeting went beyond the scope of the performance evaluation, the following comments are in order. The Open Meeting Law does not contain a provision allowing public bodies to close meetings for general personnel reasons; meetings can only be closed in the specific circumstances described in section 13D.05 or by other statutes. As discussed in Issue 1, a performance evaluation may naturally include references to "compensation and prospective extension of [an] employment agreement." However, once a public body has determined that the employee will remain employed with a possible change in pay based on his performance, and the discussion logically turns to the specifics about the employment agreement, the Council is no longer evaluating the performance of an individual per section 13D.05, subdivision 3(a). In these circumstances, contract negotiations must be done in an open meeting.</p> <p>Ms. Janovy also raised the issue of whether the Council properly closed the January meetings by making the required statements on the record. When a public body closes a meeting, it must state the specific grounds allowing or requiring the meeting to be closed and describe the subject to be discussed. (See Minnesota Statutes, section 13D.01, subdivision 4.) Mr. Knutson wrote, "Before closing the meeting [sic] Mayor Hovland stated they were closing the meetings for purposes of evaluating the City Manager's performance."</p> <p>According to emails between Ms. Janovy and the Edina City Clerk, the Council recorded only the public portion of the January 6, 2015, meeting following the closed session. Neither Ms. Janovy nor Mr. Knutson provided the statement closing the meeting. Therefore, the Commissioner cannot determine whether the Council's statement was sufficient, with regard to the January 6, meeting.</p> <p>The Council recorded the open and closed portions of the January 20, 2015, meeting. However, because the Commissioner determined that closing the additional meeting for a performance evaluation was improper, the sufficiency of the January 20 statement is immaterial.</p> <p>Additionally, section 13D.05, requires that public bodies record all closed meetings, except those closed per attorney-client privilege. Because the Council did not do so on January 6, it did not comply with that provision of the Open Meeting Law. While Mr. Knutson did not address this issue in his letter to the Commissioner, Mr. Hovland wrote, in a February 20, 2015, email to Ms. Janovy, "Going forward, the City staff and the Council will take greater care to refrain from such errors. City staff is committed to being more careful about this responsibility in the future." The Commissioner is encouraged by Mr. Hovland's comments.</p> <p><strong><em>Issue 3.</em></strong> <em>Did the Edina City Council comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the City Manager's performance evaluation at the February 3, 2015, meeting?</em></p> <p>Pursuant to section 13D.05, subdivision 3(a), when a public body closes a meeting for a performance evaluation, at its next open meeting, the public body shall summarize its conclusions regarding the evaluation.</p> <p>Here, Ms. Janovy raised concerns regarding both the timing and the content of the summary provided by the Council. The Council held separate meetings on January 6 and January 20 and provided the summary at its open meeting on February 3, 2015. However, the "next open meeting" following the January 6, meeting, was the open portion of the January 20 meeting, right before the Council went into closed session. Therefore, the summary was not timely. Had the Council announced its intent to <em>continue</em> the January 6 meeting to January 20 (by recessing and reconvening, instead of adjourning), so that it could finish the performance evaluation, the public would have known to expect the summary at the February 3, meeting, i.e., its next open meeting. (See also, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267496" title="12-008" target="_blank">Advisory Opinion 12-008</a>.)</p> <p>Regarding the content of the summary, the Commissioner offered the following guidance in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266799" title="02-021" target="_blank">Advisory Opinion 02-021</a>:</p> <p class="opinion_quote">Government entities seeking guidance on what to summarize can look to the language of the Open Meeting Law. Specifically, Chapter 13D directs a governing body to summarize its conclusions regarding a personnel evaluation. How a public body approaches the evaluation will determine exactly which data it should summarize. The public body should carefully review the specific points it established in reaching a conclusion about the performance evaluation. Clearly, the language of the Open Meeting Law indicates that the governing body ought to summarize each salient point of the evaluation so that the public is given the opportunity to get the best possible sense of the performance - good, bad, or indifferent - of the public employee.</p> <p>The Commissioner addressed the sufficiency of several summaries in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366" title="14-007" target="_blank">Advisory Opinion 14-007</a>:</p> <p class="opinion_quote">[In Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267635" title="99-018" target="_blank">99-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266799" title="02-021" target="_blank">02-021</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267659" title="02-035" target="_blank">02-035</a>] the Commissioner concluded that the following statements were insufficient to fulfill the public bodies' statutory obligations: "[the Board] discussed the superintendent's strengths and weaknesses"; "As a result of that review, strengths were noted and areas of improvement were defined. The board developed goals regarding communication and leadership"; and "areas of growth were identified and [the Superintendent's] evaluation is an ongoing process."</p> <p>At the February 3 meeting, Mr. Hovland provided the following summary: "summarizing the conclusions of that evaluation, the council concluded that [the City Manager is] doing an excellent job and it's being reflected in this employment agreement that we are working on." While the statement provided by Mr. Hovland included a conclusion that the City Manager was "doing an excellent job," the City did not provide information consistent with guidance in prior advisory opinions that direct public bodies "to summarize each salient point of the evaluation so that the public is given the opportunity to get the best possible sense of the performance - good, bad, or indifferent - of the public employee." (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266799" title="02-021" target="_blank">Advisory Opinion 02-021</a>.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Janovy raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The Edina City Council complied with Minnesota Statutes, section 13D.04, subdivision 2(a), regarding notice for the January 20, 2015, special meeting.</li> </ol> <ol start="2" type="1"> <li>The Edina City Council did not comply with Minnesota Statutes, Chapter 13D when it closed meetings on January 6, 2015, and January 20, 2015; the Council held two meetings to evaluate the performance of the City Manager and it failed to record the January 6, 2015, meeting. The Commissioner cannot determine if the Council made a proper statement on the record to close the January 6 meeting.</li> </ol> <ol start="3" type="1"> <li>The Edina City Council did not comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding the summary of the City Manager's performance evaluation because it should have provided a summary of the January 6 closed meeting during the open portion of January 20 meeting. As noted in previous opinions, a performance evaluation summary should include salient points of the evaluation so that the public is aware of the rationale upon which the public body based its conclusion.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: May 7, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2676752666292663652022-01-18T19:19:48Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267475" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2015-04-03T15:14:43ZA state agency asked the Commissioner about the classification of data in an application submitted by a non-registered medical cannabis manufacturer applicant that are not otherwise specifically classified as not public data under Minnesota Statutes, section 152.25, subdivision 1. The Commissioner opined that after a medical cannabis manufacturer is registered, data in the application submitted by that applicant are presumptively public (except for trade secret or security information under section 13.37).April 3, 2015; Minnesota Department of Health36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note: A district court found that the data at issue in this opinion - non-registered manufacturer/applicant submissions - are nonpublic per Minnesota Statutes, section 152.25. See, Cross Nurseries, LLC v. MDH, no. 62-CV-15-7603 (Sept 30, 2016).</strong></p> <h2>Facts and Procedural History:</h2> <p>On February 9, 2015, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Dr. Edward P. Ehlinger, Commissioner of the Minnesota Department of Health (MDH). In his letter, Commissioner Ehlinger asked the Commissioner of Administration to issue an advisory opinion regarding the classification of certain data that MDH maintains. MDH provided additional information on February 27.</p> <p>IPAD wrote to Conor P. Filter, Chief Executive Officer of Sano Remedies, to offer him an opportunity to submit comments on the issues the Commissioner will address; he did not.</p> <p>Commissioner Ehlinger provided a summary of the facts as follows:</p> <p class="opinion_quote">By way of background, in 2014 the Minnesota Legislature enacted Minn. Stat. sectionsection152.22 through 152.37, pertaining to the production, distribution, and patient use of medical cannabis. Minn. Stat. section152.25, Subd. 1(a) required MDH to register two in-state manufacturers for the production and distribution of all medical cannabis within Minnesota To accomplish this mandate the MDH Office of Medical Cannabis (OMC) published a Request for Application for the Registration of Medical Cannabis Manufacturers (RFA). The RFA instructed applicants with regards to data classifications pursuant to the Minnesota Government Data Practices Act and, more specifically, Trade Secret Information pursuant to Minn. Stat. section13.37, Subd. 1(b).</p> <p>After evaluating all applications, MDH registered the two highest-scoring applicants as medical cannabis manufacturers. Commissioner Ehlinger stated that OMC staff then reviewed the application materials and redacted all security information and trade secret data pursuant to Minnesota Statutes, section 13.37; financial information, including business plans, per Minnesota Statutes, section 13.591, subdivisions 1 and 2; and criminal history data per Minnesota Statutes, section 13.87, subdivision 1(b).</p> <p>Commissioner Ehlinger wrote that OMC similarly reviewed the applications submitted by the next two highest-scoring applicants, neither of which was registered as a manufacturer. He wrote:</p> <p class="opinion_quote">The OMC redacted security, trade secret, financial, and criminal background check information from those two applications and forwarded the redacted applications to each applicant with notice that the redacted applications would be posted on the OMC website Each applicant was invited to contact the OMC if they believed additional materials in their application should also be removed.</p> <p>One of those two unsuccessful applicants, Sano Remedies, responded that pursuant to section 152.25, subdivision 1, because it was not a registered manufacturer, none of the application materials it submitted were public.</p> <p>Commissioner Ehlinger further wrote that OMC tried to clarify with Sano whether it was objecting to the release of all portions of its application, or just those portions Sano considers its business plan. If the latter, OMC asked Sano to identify the portions of its application that constituted its business plan, "as Sano did not label or otherwise mark any specific portion of its application as its 'Business Plan.'" Sano did not provide MDH with clarification.</p> <hr /> <h2>Issues:</h2> <p>Based on Commissioner Ehlinger's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an application submitted by a non-registered medical cannabis manufacturer applicant that are not otherwise specifically classified as not public data?</li> </ol> <ol start="2" type="1"> <li>To the extent that those application materials include a "business plan," what is the classification of those data pursuant to Minnesota Statutes, section 13.591?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p><strong><em>Issue 1</em></strong><em>. Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an application submitted by a non-registered medical cannabis manufacturer applicant that are not otherwise specifically classified as not public data?</em></p> <p>Minnesota Statutes, section 152.25, subdivision 1, in relevant part, provides:</p> <p class="opinion_quote">Data submitted during the application process are private data on individuals or nonpublic data as defined in section 13.02 until the manufacturer is registered under this section. Data on a manufacturer that is registered are public data, unless the data are trade secret or security information under section 13.37.</p> <p>Commissioner Ehlinger explained MDH's position:</p> <p class="opinion_quote">The language in this statute is clear and unambiguous and, as a result, is controlled by the plain meaning of the words and is not subject to interpretation. The statute simply clarifies and emphasizes that all data submitted during the application process by any applicant who is eventually registered as a medical cannabis manufacturer is public data with the exception of Trade Secret or Security Information. Contrary to Sano's assertion, this statute clearly does not <em>per se</em> classify all data and information contained in materials from all non-registered applicants as not public data. Sano misinterprets the phrase "data on a manufacturer that <em>is</em> registered <em>are</em> public data" as also mandating the contrary: that data on an applicant that is <em>not</em> registered is <em>not</em> public data. Sano's interpretation is without legal merit, in that Sano is simply attempting to place words into this statute that the Legislature intentionally chose not to use. [Emphasis provided; notes omitted.] <br /></p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267841" title="05-036" target="_blank">Advisory Opinion 05-036</a>, the Commissioner (of Administration) addressed a similar issue, about the classification of data under Minnesota Statutes, section 13.601, subdivision 3, which at the time provided: "[t]he following data on all applicants for election or appointment to a public body are public: name, city of residence and prior government service or experience." The Commissioner opined: <br /></p> <p class="opinion_quote">Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.601, subdivision 3, provides that certain data are public - essentially, restating the general presumption. This does not mean that all other data on applicants for election or appointment to a public body are not public. Given the operation of Chapter 13, if the Legislature intended for all other data on applicants for election/appointment to be not public, the Legislature needed to enact a provision so stating. [The Legislature subsequently amended section 13.601, subdivision 3; it now classifies all data as private except for those elements it specifically states are public.] <br /></p> <p>The Commissioner (of Administration) acknowledges Sano Remedies' confusion regarding the operation of section 152.25, subdivision 1(a), which classifies all data submitted during the application process as not public. That provision does not reverse the general presumption; rather, it classifies applications data temporarily, until a manufacturer is registered. The sentence, "Data on a manufacturer that is registered are public data, unless the data are trade secret or security information under section 13.37," simply restates the general presumption and continues to classify certain data as not public. Therefore, MDH is correct, application data (except trade secret or security information) submitted by unregistered manufacturers become public, along with the data submitted by registered manufacturers, after a manufacturer is registered. <br /></p> <p>Commissioner Ehlinger stated that MDH redacted financial information pursuant to section 13.591, subdivisions 1 and 2. Those provisions do not apply to the data at issue here. They classify data that are "submitted to a government entity by a business requesting financial assistance or a benefit financed by public funds." (Section 13.591, subdivisions 3 and 4 classify data related to a procurement process that MDH did not use.) <br /></p> <p><strong><em>Issue 2</em></strong><em>. To the extent that those application materials include a "business plan," what is the classification of those data pursuant to Minnesota Statutes, section 13.591?</em></p> <p>Minnesota Statutes, section 13.591 is not applicable to the data in question.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Commissioner Ehlinger raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, after a medical cannabis manufacturer is registered, data (except trade secret or security information) in an application submitted by a non-registered manufacturer applicant are presumptively public.</li> </ol> <ol start="2" type="1"> <li>Minnesota Statutes, section 13.591, is not applicable to the application materials. Those data are classified as provided in section 152.25, subdivision 1.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: April 3, 2015</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2674752666803443452670632022-01-18T19:19:48Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267189" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-12-23T16:14:43ZA school district asked about the classification of certain complaint data it maintained about a former principal. The principal resigned following an investigation which did not result in discipline. He also signed a Release of Liability releasing the District from all claims. A Release of Liability is a settlement agreement for purposes of Minnesota Statutes, section 13.43, subd. 2(f), and therefore all data about the complaint or charge against the principal are public, except those data that identify confidential sources.December 23, 2014; Independent School District 833 (South Washington County Schools)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On November 14, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Trevor Helmers, attorney for Independent School District 833, South Washington County Schools (the District). In his request, Mr. Helmers asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the entity maintains.</p> <p>In a letter dated November 20, 2014, IPAD wrote to Roger Aronson, attorney for the data subject, former principal Aaron Harper, to invite him to submit comments. Mr. Aronson did not provide comments.</p> <p>Mr. Helmers provided a summary of the facts as follows:</p> <p class="opinion_quote">Pursuant to complaints the District received against Principal Harper, the District conducted an investigation. During the course of the investigation, the District interviewed witnesses and reviewed a number of documents After the interview with Principal Harper, the District closed its investigation and the School Board did not take disciplinary action. No final "investigation report" was prepared.</p> <p class="opinion_quote">Subsequent to the close of the investigation, Principal Harper submitted his written resignation letter to the District, effective November 6, 2014, and in a separate document, executed a "Release of Claims," agreeing to release any and all claims that he may have had against the District prior to signing the release. At its Board Meeting on November 6, 2014, the District accepted Mr. Harper's resignation and signed the Release of Claims Agreement.</p> <p class="opinion_quote">After the meeting, the District released public information to [Scott Wente of the <em>South Washington County Bulletin</em>] regarding the existence and status of the complaints that had been made against Mr. Harper. The District also notified Mr. Wente that Mr. Harper had resigned and provided some details regarding the Agreement between the District and Mr. Harper. Mr. Wente made a formal request the next day for all "public information" related to the complaints and investigation of Mr. Harper</p> <p class="opinion_quote">Mr. Harper and the District disagree as to the classification of the information regarding the complaint and the District's investigation. The District believes that all information related to the complaint and charge against Mr. Harper, other than Attorney-Client Privileged documents, are public, pursuant to Minnesota Statutes, 13.43, Subdivisions 2(f)(1-2), because Mr. Harper and the District entered into a release of Claims Agreement. Mr. Harper disagrees, and believes that this information remains private data because the requirements of Subdivision 2(f)(2) have not been met.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Helmers's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data maintained by Independent School District 833, South Washington County Schools, relating to a complaint or charge about a school principal who resigned and signed a "Release of Claims," but was not disciplined?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>Generally, only the existence and status of a complaint or charge are public data, when an entity does not discipline an employee as a result of the complaint or charge. (See Section 13.43, subdivision 2(a)(4) and (5).) For employees who are public officials, however, all data relating to a complaint or charge are public if certain conditions are met. Pursuant to subdivision 2(e)(4)(iv), a principal is a public official.</p> <p>Section 13.43, subdivision 2(e), provides:</p> <p class="opinion_quote">Notwithstanding paragraph (a), clause (5), and subject to paragraph (f), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.</p> <p>Section, 13.43, subdivision 2(f), applies to certain "local" public officials, including principals, and provides:</p> <p class="opinion_quote">(f) Data relating to a complaint or charge against an employee identified under paragraph (e), clause (4), are public only if:</p> <p class="opinion_quote">(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending; or</p> <p class="opinion_quote">(2) potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement.</p> <p>Here, the District closed its investigation and did not impose discipline on Mr. Harper. Mr. Harper subsequently offered his resignation to the District. At issue, then, is the application of section 13.43, subdivision 2(f)(2).</p> <p>Mr. Helmers wrote:</p> <p class="opinion_quote">Mr. Harper's disagreement with [the District's] analysis essentially boils down to two arguments. First he does not believe that his resignation letter and the Release of Claims Agreement between the parties constitutes a "Settlement Agreement," and second, he argues that he did not specifically release any legal claims that related to the conduct that was the subject of the complaint or charge, and the District never released any claims that it may have had against him.</p> <p class="opinion_quote">The District believes that the Release of Claims agreement constitutes a "Settlement Agreement" sufficient to trigger the release of data under this statute. While the term is not specifically defined in this statute, or elsewhere in the [Minnesota Statutes, Chapter 13], the statute clearly makes public "the complete terms of any agreement settling any dispute arising out of an employment relationship." The District believes that this language indicates that any agreement that settles a dispute between a public employer and public employee is thus considered a "Settlement Agreement," for the purposes of this statute. (Citations omitted.)</p> <p>The Commissioner agrees with Mr. Helmer's analysis. The Legislature did not define the meaning of the phrase "settlement agreement" in section 13.43, subdivision 2(f)(2). However, Minnesota Statutes, section 645.08, provides that words and phrases not defined in statute are to be construed according to their common and approved usage. "Settlement" is defined as "a formal agreement or decision that ends an argument or dispute." "Agreement" is defined as "an arrangement, contract, etc., by which people agree about what is to be done." (Merriam-Webster.com. 2014. http://www.merriam-webster.com (December 2014).)</p> <p>Mr. Helmers provided the Commissioner with a copy of the Release of Liability. The agreement states:</p> <p class="opinion_quote">In consideration for good and valuable consideration including the district's agreement to accept Harper's resignation and release him from his contract, Harper hereby fully and completely releases the District from any and all liability for any and all damages, actions, or claims, regardless of whether they are known or unknown, direct or indirect, asserted or unasserted that arise out of or relate to any action, decision, event, fact, or circumstance occurring before Harper signs this Release.</p> <p>Based on the plain language of section 13.43, subdivision 2(f)(2), and the language of the release, that document is a "settlement agreement," regardless of the title of the document. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267717" title="03-036" target="_blank">Advisory Opinion 03-036</a>.) Because Mr. Harper signed a settlement agreement releasing the District from liability, all data about the complaint or charge are public, except data that would reveal confidential sources, per subdivision 2(e).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Helmers raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 2(e) and (f), all data about the complaint or charge against a former principal maintained by Independent School District 833 are public, because the former principal entered into a settlement agreement releasing the District from potential legal claims arising out of the conduct that was the subject of the complaint or charge.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Commissioner</p> <p class="date">Dated: December 23, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2671892668732022-01-18T19:21:06Z266258266264266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267405" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-12-01T16:14:43ZA state agency asked about its classification of data determination related to an internal audit of one of its grantees, including supporting documentation and other documents collected as part of the audit. The grantee is a political subdivision, subject to Chapter 13. The documentation includes data about employees, members of the public, and credit card, bank account, and Social Security numbers. In addition, it includes the grantee’s response to the internal audit report, copies of the grantee’s audit reports, and copies of some board minutes. Some of the data are classified as private pursuant to sections 13.43, 13.355, and 13.37. The remainder of the data in question are presumptively public, per section 13.03, or expressly public personnel data under section 13.43.December 1, 2014; Department of Human Services36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On September 25, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Carolyn Schworer, Chief Privacy Official for the Minnesota Department of Human Services. IPAD required additional information, which Ms. Schworer provided on October 17, and November 10, 2014. Admin accepted the opinion request on November 10, 2014. In her letter, Ms. Schworer asked the Commissioner to issue an advisory opinion regarding the classification of data the Department maintains that relate to an audit of Community Action of Minneapolis (CAM).</p> <p>IPAD wrote to Anthony Spears, Chief Financial Officer for CAM, and to its Board of Directors, to offer them an opportunity to submit comments. They did not respond.</p> <p>According to Ms. Schworer, the Department's internal audit office conducted a financial audit of CAM, a grantee. CAM is a private non-profit organization. It is also a community action agency, and therefore is a political subdivision subject to Chapter 13 (see Minnesota Statutes, sections 256E.30 to 256E.32, and section 13.02, subdivision 11).</p> <p>The Department has published its final audit report. The data at issue are the supporting documentation CAM submitted during the auditing process, and other related data, including data on CAM employees, Board members, and individuals who are neither Board members nor employees. Ms. Schworer wrote:</p> <p class="opinion_quote">This supporting documentation is in a variety of formats, includes data for which reimbursement under the grant was not requested, and references data subjects that are apparently neither employees of the grantee nor board members. The supporting documentation includes charge account statements, vouchers, and a wide variety of receipts that detail the expenditures for which reimbursement was requested.</p> <p class="opinion_quote">In addition, after the internal audit report was published, the grantee sent a communication to the [Department] in response to the internal audit report. The Department also has paper copies of the grantee's audit reports dating back to June 30, 2007, which were prepared by the grantee's outside auditor, and electronic copies of some board minutes, but not agendas or documents distributed at board meetings, dating back to September 2010.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Schworer's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, how are the following data the Minnesota Department of Human Services maintains classified: certain data related to an internal audit, including supporting documentation and other documents collected as part of the audit?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 generally classifies other types of personnel data as private.</p> <p>Of relevance here, section 13.43, subdivision 2(a) classifies the following data as public:</p> <p class="opinion_quote">(1) name; employee identification number, actual gross salary; salary range; terms and conditions of employment relationship; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary;</p> <p class="opinion_quote">(2) job title and bargaining unit; job description; education and training background; and previous work experience;</p> <p>Ms. Schworer wrote:</p> <p class="opinion_quote">There is supporting documentation that lists the names of personnel of Community Action of Minneapolis with employee titles, positions, hours worked, amounts paid, etc. The Department has determined that this supporting documentation relating to employees is public as personnel data. The Department would redact any data included on these charts that are not public as personnel data according to Minnesota Statutes, section 13.43. These charts also indicate the percentage of the employees' time that is allocated to the various grants. The Department has determined that these data are public because the data is essentially financial data relating to the grants and grant reimbursement, and is not classified as personnel data because the employee is not the subject of the data. Any other data on employees in the supporting documentation are classified according to Minnesota Statutes, section 13.43.</p> <p>Minnesota Statutes, section 13.601, subdivision 3, classifies as private certain data on applicants for appointment and appointees to a public body. According to Ms. Schworer:</p> <p class="opinion_quote">There is supporting documentation that includes data on board members. The board members of Community Action of Minneapolis are not employees of the private non-profit. Because they are not employees, Minnesota Statutes, section 13.43 does not apply to the data. Data on board members are not subject to classification under Minnesota Statutes, section 13.601 because Community Action of Minneapolis is a private non-profit organization. Requiring the community action agency to comply with Chapter 13 as a political subdivision does not change the organization into a public body or a government entity as contemplated under Minnesota Statutes, section 13.601. Therefore, the board members are neither elected nor appointed officials as described in the statute. Data on individuals who receive benefits from a community action agency are classified under Minnesota Statutes, section 13.462 as private. However, the individuals in the supporting documentation are not receiving benefits from a community action agency, and therefore Minnesota Statutes, section 13.462 does not apply and the data are classified as public.</p> <p>The Commissioner concurs with Ms. Schworer's analysis and the Department's determinations. The data about CAM employees are either expressly public under section 13.43, subdivision 2(a), or private per subdivision 4. Also, based upon her description, data on CAM Board members are not classified under either section 13.43 or 13.601, and are therefore presumptively public. Section 13.462 classifies data on individuals who are recipients of benefits from a community action agency, and thus is not applicable to the data at issue.</p> <p>Ms. Schworer also wrote to the Commissioner that Minnesota Statutes, section 13.392, subdivision 2, which classifies certain internal audit data, is not applicable to the supporting documentation:</p> <p class="opinion_quote">[T]he statute requires that the information would not have been provided to the internal audit office or person performing audits without an assurance to the individual that the individual's identity would remain private. The supporting documentation was not provided under such assurances.</p> <p>Accordingly, section 13.392 does not classify any of the data in question.</p> <p>As noted above, Ms. Schworer wrote that the Department also maintains a letter CAM sent to the Department in response to the internal audit report, as well as some CAM audit reports and board minutes, which the Department has determined are presumptively public per section 13.03.</p> <p>Ms. Schworer also stated that, "[t]he Department has determined that some of the data in the supporting documents, such as credit card numbers and bank account numbers, are private under Minnesota Statutes, section 13.37 as security data. Social Security numbers would also be classified as private under Minnesota Statutes, section 13.355."</p> <p>Ms. Schworer wrote, "[t]he Department asks whether [the Commissioner of Administration] concur[s] with the Department's analysis that these data, the supporting documentation, the communication sent in response to the audit report, the audit reports and minutes, are presumptively public, with the exception of security data, social security numbers, and private personnel data, which are private."</p> <p>The Commissioner concurs with Ms. Schworer's analysis and the Department's determinations regarding the classification of the data at issue.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Schworer raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, some of the data the Minnesota Department of Human Services maintains, described above, that relate to an internal audit, including supporting documentation and other documents collected as part of the audit, are classified as private pursuant to Minnesota Statutes, sections 13.43, 13.355, and 13.37. The remainder of the data in question are presumptively public, per section 13.03, or expressly public personnel data under section 13.43.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: December 1, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2674052667952667692667982022-01-18T19:21:06Z266258266279266301266414266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267495" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-11-17T16:14:43Z A requester asked for access to copies of contracts and non-disclosure agreements for cell phone exploitation equipment. The entity said it could not redact the documents because they contained inextricably intertwined trade secret data (section 13.37, subdivision 1(b)), and “deliberative process/ investigative techniques” data (section 13.82, subdivision 25). Contracts and non-disclosure agreements contain standard clauses that are presumptively public. Accordingly, the entity must redact any data that are properly classified under sections 13.37 and/or 13.82, and release the remaining public data. November 17, 2014; Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On September 24, 2014, the Information Policy Analysis Division (IPAD) received a letter dated September 22, 2014, from Leita Walker, on behalf of Star Tribune Media Company, LLC. In her letter, Ms. Walker asked the Commissioner to issue an advisory opinion about her client's right to gain access to certain data maintained by the Minnesota Department of Public Safety (DPS).</p> <p>IPAD, on behalf of the Commissioner, wrote to Ramona L. Dohman, DPS Commissioner, in response to Ms. Walker's request. The purposes of this letter, dated October 2, 2014, were to inform her of Star Tribune's request and to ask her to provide information or support for DPS's position. On October 22, 2014, IPAD received a response, dated same, from Drew Evans, Assistant Superintendent for the Bureau of Criminal Apprehension (BCA), a division of DPS.</p> <p>A summary of the facts as Ms. Walker provided them follows. Star Tribune asked DPS for access to its contracts and non-disclosure agreements for the "Stingray II" and "Kingfish" cellular exploitation equipment. She wrote:</p> <p class="opinion_quote">DPS cannot withhold the contracts and NDAs, <em>in their entirety,</em> based on the vague assertion that "a corporation supplying data to a government entity may claim portions are trade secret" and that "[t]he contracting company in this case has taken efforts to protect the data from disclosure." Rather, the vendor must provide "specific rationales" for its assertion that the contracts and NDAs contain trade secrets, and DPS "needs to make its own determination regarding the appropriateness of those claims." [See Advisory Opinions 96-035 and 05-024.] There is no indication that the vendor here has provided an explanation as to how disclosure of the contracts and NDAs would reveal its trade secrets. And even if it has, there is no indication that DPS has done anything more than simply take the vendor at its self-interested word. Such unexamined acquiescence to vendor wishes is not permitted.</p> <p class="opinion_quote">In fact, Star Tribune is highly skeptical that <em>any</em> data in the contracts or NDAs satisfies the "rigorous definition" of "trade secret" found at Minn. Stat. section 13.37, subd. l(b). [See Advisory Opinion 96-035.] The Commissioner "consistently has interpreted the trade secret definition narrowly," and has concluded that, "given the presumption of openness in Chapter 13 ... the Legislature intended that government entities employ section 13.37, subdivision 1 (b), in a limited manner." [See Advisory Opinion 03-009.] And any supposed "trade secret" that has already been made public - for example, through release of the Hennepin County documents or through release of other contracts for Stingray II and Kingfish equipment - are no longer "secret" and thus ought not be withheld as such. <em>See, e.g., Prairie Island Indian Cmty.</em> v. <em>Minnesota Dept. of Public Safety,</em> 658 N.W.2d 876, 886 (Minn. Ct. App. 2003) ("[I]f data are readily ascertainable by proper means, those data cannot derive independent economic value from nondisclosure.").</p> <p class="opinion_quote">Regardless, the existence of some trade-secret information in the requested documents is not a basis to withhold them in their entirety. The protected portions can be redacted, and the rest should be released. <em>See Prairie Island Indian Cmty.,</em> 658 N.W.2d at 888.</p> <p class="opinion_quote">DPS's other justification for withholding the contracts and NDAs is that they "would reveal information regarding investigative techniques that would compromise ongoing and future criminal investigations." DPS has not offered any further explanation.</p> <p class="opinion_quote">Presumably, the requested contracts, NDAs, and their related attachments describe with some specificity the capabilities of the cellular exploitation equipment. However, to the extent these capabilities have already been publicly disclosed-for example, by DPS in its letter to Senator Dibble, by the media, on the vendor's own website or in its marketing materials, or in a patent application filed by the vendor-there is no reason to withhold such data. [See Advisory Opinion 95-003.]</p> <p class="opinion_quote">And to the extent DPS can establish that the contracts and NDAs get so detailed as to actually jeopardize its ability to apprehend criminals and/or locate individuals in need of help, the solution is to simply redact those portions. There is no basis to withhold the requested documents in their entirety. [Emphasis provided.]</p> <p>(Footnotes omitted.)</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Walker's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, did the Minnesota Department of Public Safety respond properly to a June 18, 2014, request for access to the Department's contracts and non-disclosure agreements for the "Stingray II" and "Kingfish" cellular exploitation equipment?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>The Commissioner has previously opined that data in government contracts are presumptively public (see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267672" title="03-027" target="_blank">Advisory Opinion 03-027</a>).</p> <p>In his response to the Commissioner, Mr. Evans stated that the contracts and NDAs in question are, in their entirety, nonpublic data pursuant to Minnesota Statutes, section 13.37, subdivision 1(b) (trade secret), and/or protected nonpublic data pursuant to Minnesota Statutes, section 13.82, subdivision 25 (as deliberative processes or investigative techniques).</p> <p>Pursuant to section 13.37, subdivision 1(b) "trade secret information" means:</p> <p class="opinion_quote">Government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</p> <p>Per section 13.82, subdivision 25, data "that reflect deliberative processes or investigative techniques of law enforcement agencies" are not public.</p> <p>Mr. Evans stated:</p> <p class="opinion_quote">The BCA understands the technical specifications of the equipment as provided by the vendor. The BCA believes this equipment is unique and the method in which it operates is superior to other competitors. Release of information would give competitors insight into the technical workings of the equipment and jeopardize the competitive advantage of this equipment.</p> <p class="opinion_quote">In addition, disclosure of any technical information about the equipment in any of the documentation would allow criminals to disrupt use of this technology, develop counter measures, and evade the technology.</p> <p class="opinion_quote">We continue to maintain our original data classification was correct to protect the sensitive nature of this equipment, its proprietary nature, and its effectiveness in criminal investigations and disagree with the classification determination made by other governmental entities.</p> <p>The Commissioner has not reviewed the data in question, so he cannot determine whether DPS has properly classified any data in the contracts and/or the NDAs as not public under sections 13.37 or 13.82. The Commissioner has consistently said that while the outside person supplying the data to the government entity bears the burden of establishing that the data meet all of the conditions set forth in section 13.37, subdivision 1(b), the entity is ultimately responsible for determining whether the data warrant classification as trade secrets. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690" title="03-009" target="_blank">Advisory Opinion 03-009</a>.)</p> <p>Ms. Walker provided a copy of the contract and NDA between Harris Corporation, the manufacturer of the Stingray II and Kingfish equipment, and the Hennepin County Sheriff's Office, which the County released in response to a Star Tribune data request. If any of the same data (or other data Ms. Walker stated have been disclosed to the public) are in BCA's contracts/NDAs for that equipment, those data cannot be trade secret data, because they are in the public domain, and therefore are "readily ascertainable by proper means." Chapter 13 does not classify sensitive or proprietary data.</p> <p>Ms. Walker questioned BCA's determination not to release any of the data in question, rather than releasing with proper redactions. In his comments to the Commissioner, Mr. Evans wrote, "[t]he documents were withheld in their entirety due to the fact that heavy redaction of the documents was so intertwined with the public data that we were unable to separate the public from the protected data in a meaningful manner."</p> <p>In <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509 (Minn. App. 1993), the Minnesota Court of Appeals held that a government entity may withhold an entire document only when public and not public data are so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267622" title="04-014" target="_blank">Advisory Opinion 04-014</a>.) In further support of redacting documents, the Court of Appeals in <em>Prairie Island v. Dept. of Public Safety</em>, 658 N.W. 2d 876 (Minn. App. 2003), stated:</p> <p class="opinion_quote">We conclude that to the extent there is any sensitive trade-secret information, the statements in question can be appropriately redacted. Although this limits the informational value of the documents, it provides public access to basic information.</p> <p>Chapter 13 generally classifies data elements, not documents. While the Commissioner has opined that an entity must determine which data elements are trade secrets, contracts typically contain some data that do not qualify for protection under section 13.37 (see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267586#/detail/appId/1/id/267890" title="96-035" target="_blank">Advisory Opinions 96-035</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690" title="03-009" target="_blank">03-009</a>). For example, typically contracts contain standard clauses such as definitions, general provisions, etc., as well as data specific to the contract, like names of vendors, addresses, dates, total cost, etc., all of which are presumptively public. Similarly, NDAs contain data such as terms, effective dates, names of authorized representatives, etc., all of which are presumptively public. Even if BCA appropriately redacted everything else, those data elements have "informational value" per <em>Northwest Publications</em>.</p> <p>In addition, the Commissioner has opined that for data to reflect a deliberative process, it must be "data collected, created or maintained that explain or describe the actions, changes or functions that a given law enforcement agency follows to conduct formal discussion or debates of all sides of an issue." Data about investigative techniques are those data that "describe the systematic procedures used to make detailed inquiries into the commission of crimes." (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267790" title="95-003" target="_blank">Advisory Opinion 95-003</a>). As stated above, contracts and NDAs likely contain general terms and other data that do not qualify for the protection in section 13.82, subdivision 25. However, if any of the data elements in the contracts and NDAs meet the requirements of deliberative process and investigative techniques as previously opined by the Commissioner, DPS/BCA should redact and properly protect those data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Ms. Walker is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, the Minnesota Department of Public Safety did not respond properly to a June 18, 2014, request for access to the Department's contracts and non-disclosure agreements for the "Stingray II" and "Kingfish" cellular exploitation equipment, because it must redact any data they contain that are properly classified under sections 13.37 and/or 13.82, and release the remaining public data.</td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: November 17, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2674952665652666042663743792942667592022-01-18T19:21:06Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267295" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-28T15:14:43Z A requester asked whether a public body properly closed two meetings on the basis of attorney-client privilege pursuant to section 13D.05, subdivision 2(b). In applying the balancing test required by the Minnesota Supreme Court, the first meeting was improperly closed because the body had not yet decided to act upon an underlying issue, which barred the body from initiating legal action. The potential opposing party attended a portion of the second meeting, so the attorney-client privilege exception does not apply because those circumstances do not dictate the need for absolute confidentiality. However, the remainder of the meeting at which the attorney for the body discussed legal options and strategies with the body was properly closed.October 28, 2014; City of East Grand Forks36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note: The Issues have been updated in the online version of this opinion to reflect the correct citation. </strong></p> <h2>Facts and Procedural History:</h2> <p>On September 8, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Steve Wagner of the <em>Grand Forks Herald</em>, dated September 5, 2014. In his letter, Mr. Wagner asked the Commissioner to issue an advisory opinion regarding the City of East Grand Forks City Council (Council) and the East Grand Forks Economic Development and Housing Authority Board (Board) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>On September 12, 2014, IPAD wrote to Craig Buckalew, City Council President. In its letter, IPAD informed Mr. Buckalew of Mr. Wagner's request and gave the members of the Council and the Board an opportunity to explain their position. On September 29, 2014, IPAD received a response, dated same, from Brad Sinclair, attorney for the public bodies.</p> <p>A summary of the facts as provided by Mr. Wagner follows.</p> <p class="opinion_quote">[W]e believe the East Grand Forks City Council and the [Economic Development and Housing Authority] board violated the state's open meetings law on June 24, 2014, and Aug. 11, 2014</p> <p class="opinion_quote">The Newspaper contends the attorney-client privilege didn't apply in either instance, and the boards didn't meet the standards for excluding the public.</p> <p class="opinion_quote">For the June 11 [sic] meeting, the City Council announced it would close the meeting, which included the EDHA board, to discuss "possible litigation." However, there was no indication that East Grand Forks faced the threat of a lawsuit, particularly since it was the aggrieved party claiming it had not been paid for $510,000 loan to Boardwalk Enterprises. <br /> <br /> To date, no lawsuit has been filed in state district court to collect the money owed to the city by Boardwalk Enterprises.</p> <p class="opinion_quote">At the August 11 meeting between the City Council and EDHA board members, officials again elected to close proceedings to the public, citing attorney-client privilege. Again, the Herald, on behalf of the public, argues this was an improper action and notes that Boardwalk Enterprises met with the Council and EDHA members. The newspaper argues the attorney-client privilege does not apply when adverse parties are gathered to discuss the matter.</p> <p>On behalf of the Council and the Board, Mr. Sinclair provided additional facts. In October of 1999, the City of East Grand Forks made a loan to Boardwalk Enterprises in the amount of $510,000. Boardwalk Enterprises agreed to begin repayment in 2003. This year, the City discovered that Boardwalk Enterprises had not yet started to repay the loan. Mr. Sinclair wrote: "The Promissory Note provides if a default under the Note occurs, a 60 day written notice of default must be sent to the Borrower and if the Borrower fails to cure the default, [the City] may move forward with enforcement of the Note and the underlying collateral, the Real Estate Mortgage." At the June 24, 2014, meeting, Mr. Sinclair "made a presentation to the [Council and Board members] solely related to the legal issues surrounding Boardwalk's Promissory Note and Real Estate Mortgage. The sole purpose of the meeting was to discuss Boardwalk's obligation, the enforceability of the obligation, defenses to the enforcement, counterclaim and legal strategies."</p> <p>Regarding the August 11, 2014, meeting, Mr. Sinclair wrote:</p> <p class="opinion_quote">The purpose of the August 11, 2014, meeting was to allow Boardwalk to respond to [the City's] 60 day Notice of Default, discuss settlementAfter the Boardwalk representatives presented their offer of settlement [the Council and Board] discussed the settlement offer and implemented further litigation strategy.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Wagner's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b), did the East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board properly close the June 24, 2014, meeting on the basis of attorney-client privilege?</li> <li>Pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b), did the East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board properly close the August 11, 2014, meeting on the basis of attorney-client privilege?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong>Issue 1.</strong><em>Pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b), did the East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board properly close the June 24, 2014, meeting on the basis of attorney-client privilege?</em></p> <p>The Legislature enacted the Open Meeting Law for the public benefit and "[t]he statute will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies." <em>St. Cloud Newspapers v. District 742 Community Schools</em>, 332 NW2d 1, 6 (Minn. 1983).</p> <p>Pursuant to Minnesota Statutes, section 13D.01, subdivision 1, all meetings of a public body must be open to the public. Minnesota Statutes, section 13D.05, subdivision 3(b), permits a public body to close a meeting on the basis of attorney-client privilege. While the Legislature enacted subdivision 3(b) in 1990, the Minnesota Supreme Court recognized an attorney-client privilege exception to the OML in 1976. See <em>Minneapolis Star and Tribune v. the Housing and Redevelopment Authority</em>, 251 NW 2d 620 (Minn. 1976) (<em>HRA</em>).</p> <p>In recognizing the common law exception in <em>HRA</em>, the Minnesota Supreme Court held that the exception will only apply when balancing the purposes of the attorney-client privilege against the purposes of the OML dictates the need for <em>absolute confidentiality</em>. While the Court held that HRA, as the defendant in a lawsuit, properly closed the meeting, it cautioned that the exception "is to be employed or invoked cautiously and <em>seldom in situations other than in relation to threatened or pending litigation</em>." (Emphasis added.) <em>HRA</em> at 626.</p> <p>In 2002, the Supreme Court held that the statutory exception in section 13D.05, subd. 3(b), was consistent with its holding in <em>HRA</em>. See <em>Prior Lake American v. Mader</em>, 642 NW2d 729 (Minn. 2002). The Court considered the issue of whether the exception would apply in situations where the public body had received a potential threat of litigation. In holding that the public body violated the OML, the Court wrote, "[b]alancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting." <em>Prior Lake American</em> at 741.</p> <p>Both <em>HRA</em> and <em>Prior Lake American</em> advised against using the privilege for general advice. (See also <em>Northwest Publications, Inc. v. City of St. Paul</em>, 435 NW 2d 64, 68 (Minn. Ct. App. 1989): "The privilege is not available, however, when a governing body seeks instead to discuss the strengths and weaknesses of the underlying proposed enactment which may give rise to future litigation.") And the <em>Prior Lake American</em> Court stated that the scope of the privilege is narrower for public bodies than it is for private clients. See <em>Prior Lake American</em> at 737.</p> <p>The Supreme Court has declined to endorse a bright-line rule with regard to the timing of when the privilege might apply and instead established the balancing test. The privilege does not automatically apply when a public body is threatened with or engaged in active litigation; conversely, the privilege is not always prohibited prior to pending or threatened litigation. The Commissioner is not aware of a court case that examines the application of the attorney-client privilege exception when the public body is a potential plaintiff in a lawsuit, as is the situation here, or how that might affect the balancing of purposes of the privilege and the OML. Nevertheless, the Supreme Court's limitations on the privilege, taken together with the obligation to construe the OML in favor of the public, set a high standard for public bodies.</p> <p>Mr. Sinclair wrote, "the sole purpose of the meeting was to discuss Boardwalk's obligation, the enforceability of the obligation, defenses to the enforcement, counterclaim and legal strategies."</p> <p>Boardwalk's obligation under the promissory note is public, as is, to some extent, the enforceability of the note itself. Mr. Sinclair also noted that the Council and Board held several open meetings in May 2014 and again on June 3, 2014, where they discussed the promissory note and mortgage and the decision to hire outside counsel (Mr. Sinclair) to advise them in the matter. He also stated that the promissory note required the City to serve Boardwalk Enterprises with a 60 day notice of default before being able to initiate litigation. At the time of the June 24, 2014, meeting, the City had not yet decided whether to send the notice. Thus, similar to the <em>Prior Lake American</em> case, the City had not yet decided the underlying issue that may have given rise to actual litigation.</p> <p>In turning to the purposes of the OML, collecting on a loan is undoubtedly a subject of public concern about which the public has a right to be informed. Similarly, a public body's deliberations over whether to pursue litigation may have a significant impact on a community, both fiscally and politically. The public's right to see its elected officials make decisions about matters of significance to the communities they serve is at the heart of the policy behind the OML.</p> <p>Based on the Supreme Court's rulings on the broad interpretation of the law, the narrow application of the privilege, and because public bodies may not invoke the exception for general legal advice, the fact that the City had not yet made the underlying decision to serve Boardwalk Enterprises with the notice of default tips the scales in favor of an open meeting. Because the circumstances here did not meet the high standard of dictating the need for absolute confidentiality, the Council and Board did not comply with the OML when it closed the June 24, 2014, meeting.</p> <p><strong>Issue 2.</strong><em>Pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b), did the East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board properly close the August 11, 2014, meeting on the basis of attorney-client privilege?</em></p> <p>See analysis in Issue 1.</p> <p>At the August 11, 2014, meeting, Mr. Wagner noted, and Mr. Sinclair confirmed, that representatives of Boardwalk Enterprises met with the Council and Board in closed session. In applying the balancing test from <em>HRA</em> and <em>Prior Lake American</em> to that part of the meeting, the Commissioner concludes the participation of Boardwalk Enterprises conflicts with the need for absolute confidentiality between the City and its attorney; the presence of a third-party in these circumstances essentially invalidates the application of the attorney-client privilege. Therefore, the closed portion of the meeting that included Boardwalk Enterprises did not comply with the OML.</p> <p>Had the parties' attorneys, or less than a quorum of the Council or Board, met with Boardwalk Enterprises (i.e., in gatherings that would not be subject to the OML), there would not have been an issue. Then, based on the result of such a gathering, Mr. Sinclair could have met with the Council and Board in closed session in the context of deciding whether to pursue litigation, i.e., for litigation strategy, as discussed below.</p> <p>While Mr. Wagner properly argued that the privilege did not apply when the adverse parties met in closed session, the Commissioner does not conclude that remainder of the meeting was likewise improper. Mr. Sinclair wrote to the Commissioner: "after the Boardwalk representatives presented their offer of settlement [the Council and Board] discussed the settlement offer and implemented further litigation strategy." The meeting minutes report that after the closed session, Mr. Galstad provided a summary: "settlement options were discussed and it was determined that more information was needed. The attorney representing the City informed both the City Council and the [Board] about their options along with legal strategy for each option."</p> <p>Here, the Commissioner concludes that the Council and Board's need to confer with legal counsel in closed session, as described by Mr. Sinclair and Mr. Galstad, outweighs the purposes of the OML. The City had taken the first steps toward litigation - serving the notice of default and entering into settlement negotiations. Allowing the opposing party to be privy to the City's conversation with its attorney at an open meeting at that juncture could have revealed legal advice and put the City at a significant disadvantage in pursuing the public's interest in the matter.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Wagner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b), the East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board did not properly close the June 24, 2014, meeting on the basis of attorney-client privilege.</li> <li>The East Grand Forks City Council and the East Grand Forks Economic Development/Housing Authority Board did not properly close the first portion of the August 11, 2014, meeting on the basis of attorney-client privilege, at which members of Boardwalk Enterprises were present. The remainder of the closed meeting of the Council, Board, and their attorney was properly closed per the privilege.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 28, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2672952662852022-04-19T16:04:21Z266258641266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267321" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-28T15:14:43ZAn entity asked whether it could release private data about a decedent to the decedent’s sister, who was not the personal representative within the meaning of section 13.10, subdivision 1(c). However, she is a trustee for purposes of a wrongful death action under section 573.02, subdivision 3. The county may release “appropriate” data (however classified) without a court order to the decedent’s sister, as a trustee in a wrongful death action as provided in section 13.10, subdivision 3. October 23, 2014; Winona County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On September 12, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from James R. Andreen, attorney for Winona County. IPAD required additional information, which Mr. Andreen provided on September 30, 2014. In his letter, Mr. Andreen asked the Commissioner to issue an advisory opinion regarding a question of access to data the County maintains.</p> <p>According to Mr. Andreen:</p> <p class="opinion_quote">Winona County has private or confidential data (for the most part welfare data) [about] Person A. Person A is now deceased. There is no personal representative for Person A.</p> <p class="opinion_quote">Person B is Person A's sister. Person B has requested data on Person A from the Winona County Community Services Department.</p> <p class="opinion_quote">Person B has been appointed a trustee for the purposes of bringing a wrongful death action pursuant to Minn. Stat. section 573.02 although no such action has yet been brought.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Andreen's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, may Winona County release private data on a deceased individual to that individual's sister without a court order?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Pursuant to Minnesota Statutes, section 13.10, subdivision 1(a) and (b), confidential or private data on decedents are data which, prior to the death of the individual data subject, were classified as confidential or private data about the individual. Per subdivision 1(c), the "'representative of the decedent' is the personal representative of the estate of the decedent during the period of administration, or if no personal representative has been appointed the surviving spouse, any child of the decedent, or, if there is no surviving spouse or children, the parents of the decedent."</p> <p>According to section 13.10, subdivision 3:</p> <p class="opinion_quote">Rights conferred by this chapter on individuals who are the subjects of private or confidential data shall, in the case of private data on decedents or confidential data on decedents, be exercised by the representative of the decedent. Nonpublic data concerning a decedent, created or collected after death, are accessible by the representative of the decedent. Nothing in this section may be construed to prevent access to appropriate data by a trustee appointed in a wrongful death action.</p> <p>Person B is Person A's sister, but not the personal representative within the meaning of section 13.10, subdivision 1(c). However, she has been appointed a trustee for purposes of a wrongful death action under Minnesota Statutes, section 573.02, subdivision 3.</p> <p>Pursuant to section 13.10, subdivision 4:</p> <p class="opinion_quote">Any person may bring an action in the district court located in the county where the data is being maintained to authorize release of private data on decedents or confidential data on decedents. The responsible authority for the data being sought or any interested person may provide information regarding the possible harm or benefit from granting the request. The data in dispute shall be examined by the court in camera. The court may order all or part of the data to be released to the public or to the person bringing the action. In deciding whether or not to release the data, the court shall consider whether the harm to the surviving spouse, children, or next of kin of the decedent, the harm to any other individual identified in the data, or the harm to the public outweighs the benefit to the person bringing the action or the benefit of the public.</p> <p>Mr. Andreen stated that the County does not believe Person B is entitled to data about Person A, and that section 13.10, subdivision 3, "suggests that if Person B were to bring a court action under [section 13.10, subdivision 4], nothing would prevent the court from ordering Winona County to provide the data. Otherwise, the legislature simply would have added such a trustee to the list of individuals in subdivision 1(c)."</p> <p>Subdivision 3 bestows upon the personal representative, or if none, certain family members (not including siblings), the full Chapter 13 rights of the decedent. The rights of a trustee appointed in a wrongful death action, however, are limited in subdivision 3 to access to "appropriate" data. Accordingly, the County must determine which data are "appropriate" data, and release them to Person B, as Person A's trustee.</p> <p>In his request, Mr. Andreen specifically asked about releasing <em>private</em> data on Person A to the trustee. However, the trustee has access to <em>appropriate</em> data, not just private data. For example, a personal representative is not entitled to get access to confidential data on a decedent, because while alive, the decedent was not entitled to get access to confidential data. (See section 13.02, subdivision 3.) So although a trustee may not exercise the full Chapter 13 rights of the decedent, the trustee potentially may be entitled to gain access to more data than a personal representative, under the operation of subdivision 3.</p> <p>If the County determines that it must withhold some of the data it maintains on Person A as not appropriate, and Person B disagrees with that determination, she may bring an action under subdivision 4 to obtain the data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Andreen raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, Winona County may release "appropriate" data, however classified, on a deceased individual to that individual's sister, as a trustee in a wrongful death action, without a court order, as provided in Minnesota Statutes, section 13.10, subdivision 3.</td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 28, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2673212664712022-01-18T19:21:01Z266258266282266283266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267684" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-23T15:14:43ZA member of the public asked whether a city council’s conduct under the OML was proper on eight different occasions. The council’s “work sessions” were special, not regular meetings, but the Commissioner could not determine whether the council complied with the special meeting notice requirements under section 13D.04, or held an improper meeting via email. The council did not properly close meetings and discussed impermissible topics in closed session, per section 13D.01, subdivision 3, and section 13D.05. The council also improperly excluded members of the public who were not disruptive. It did not comply with section 13D.05, subdivision 3 (a), because it did not provide the required summary of a performance evaluation. It did not comply with section 13D.01, subdivision 6, because a public copy of members’ materials was not available. October 23, 2014; City of Crystal36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On August 25, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Michelle Gross, President of Communities United Against Police Brutality (CUAPB), dated August 24, 2014. In her request, Ms. Gross asked the Commissioner to issue an advisory opinion regarding the Crystal City Council members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). IPAD required additional information/clarification, which Ms. Gross provided on September 3, 2014. <br /></p> <p>On September 9, 2014, IPAD wrote to Crystal City Mayor Jim Adams, Chair of the City Council, to inform him of Ms. Gross's request and give the members of the Council an opportunity to explain their position. On September 23, 2014, IPAD received a response, dated same, from Michael Norton and Susan Torgerson, attorneys for the Council. <br /></p> <p>A summary of the facts as provided by Ms. Gross follows. CUAPB alleges that the City Council violated various provisions of the OML at numerous Council meetings in 2013 and 2014 (discussed in detail below).</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Gross's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li> <p>Did the City of Crystal City Council comply with Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law, in email communications with the City Manager on July 31, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the Council meeting held August 5, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the meeting held on August 20, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, Chapter 13D, at the meeting held on September 3, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), section 13D.04, and section 13D.05, at the meeting held on September 17, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the meeting held on October 1, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), section 13D.04, and section 13D.05, at the meeting held on December 3, 12 and 17, 2013?</p> </li> <li> <p>Did the City Council comply with Minnesota Statutes, section 13D.01, section 13D.04, and section 13D.05, at the meeting held on February 18, 2014?</p> </li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>The Minnesota Supreme Court has found that the provisions of the Open Meeting Law are to be interpreted in favor of the public. The Court said:</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W. 2d 294, 297 (Minn. 1993); <em>see St. Cloud Newspapers</em>, <em>Inc. v. Dist. 742 Cmty. Schs.,</em> 332 N.W. 2d at 6 (stating that the Open Meeting Law "will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies.") See <em>Prior Lake American v. Mader,</em> 642 N.W. 2d 729, 735 (Minn. 2002).</p> <p><strong>Issue 1.</strong><em>Did the City of Crystal City Council comply with Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law, in email communications with the City Manager on July 31, 2013?</em></p> <p>The City Manager emailed all council members, recommending that they postpone an item on the agenda for the August 5, 2013, meeting about a proposed ordinance. She wrote: <br /></p> <p class="opinion_quote">In light of the proposed Communities United rally on Monday and the Council's need to NOT discuss any of Communities United issues due to pending litigation, I am concerned about how it might be perceived if the Council proceeds with consideration of the ordinance amending the city code regarding chickens (the perception that you're not discussing allegations regarding corruption in the PD but you are willing to consider changes in the city code to allow chickens). I recommend you consider rescheduling the chicken discussion to August 20 - but it is your meeting. Just offering my thoughts - let me know yours.</p> <p>At least a quorum (four or five) responded only to her; she forwarded each response to all members. In their responses, two members said yes or no, two discussed community perceptions and gave their reasons for their positions; two used the word vote regarding their preferences. <br /></p> <p>Ms. Gross wrote, [a] meeting was conducted via email exchange among council members in which voting occurred The topic discussed concerned a strategy for managing public perceptions of issues raised by [CUAPB] at their next meeting while still being able to deal with another issue.</p> <p>In their response to the Commissioner, Mr. Norton and Ms. Torgerson stated that the council did not hold an improper meeting via email:</p> <p class="opinion_quote">Rather, the emails show simply that the City Manager gave information to Council members about a meeting agenda scheduling issue. Some of members gave feedback, but they did not discuss the matter amongst Council members, and they did not make a decision - the decision was made by the City Manager. They did not vote , but conveyed some individual opinions to the City Manager.</p> <p>The Minnesota Supreme Court provided guidance about what constitutes a meeting under the OML: Those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body. (See <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).) <br /></p> <p>The Commissioner has previously opined that communication via telephone or the exchange of emails can lead to a violation of the OML. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022" title="06-017" target="_blank">Advisory Opinions 06-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267446" title="09-020" target="_blank">09-020</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267388" title="13-015" target="_blank">13-015</a>.) In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267446" title="09-020" target="_blank">Advisory Opinion 09-020</a>, a quorum of a public body exchanged emails in an attempt to agree on language for a press release. The Commissioner said that a quorum commented on and provided direction to the Chair. The Commissioner concluded that the exchange was tantamount to a virtual meeting that was required to be open pursuant to the OML. <br /></p> <p>Here, the administrator emailed each Council member, a quorum responded to her, and she then forwarded all of their responses to all members. IPAD reviewed the emails Ms. Gross submitted. She characterized the exchange as a discussion of a public relations matter, which is an issue related to official business (similar to the situation in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267446" title="09-020" target="_blank">09-020</a>), but Mr. Norton and Ms. Togerson asserted that some Council members simply gave feedback to the administrator. Given the differences in opinion here, the Commissioner cannot determine that the Council violated the OML. However, the Commissioner strongly cautions the Council per <em>Moberg</em> and <em>St. Cloud Newspapers, Inc.</em>, not to discuss, decide, or receive information as a group, which would constitute a meeting required to be public.</p> <p><strong>Issue 2</strong><em>. Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the Council meeting held August 5, 2013?</em></p> <p><strong><em>Part A</em>. </strong><strong><em>Special meetings</em></strong>. Pursuant to Chapter 13D, public bodies may hold three types of meetings: regular, special, and emergency. For regular meetings, Minnesota Statutes, section 13D.04, subdivision 1, requires a public body to keep a schedule on file at its primary offices. No additional notice is required. A meeting that differs in date, time or location from a regular meeting is a special meeting. Pursuant to subdivision 2, a public body must post written notice of a special meeting on its principal bulletin board or regular meeting room door at least three days before the meeting and it must include the date, time, place, and purpose for the meeting on the notice. (Emergency meetings are not at issue here.)</p> <p>According to Ms. Gross, the August 5 work session was not listed on the City's schedule of regular meetings, "making it a special meeting."</p> <p>Mr. Norton and Ms. Torgerson responded to the Commissioner that the Council followed proper procedures, as evidenced by the minutes of the August 5 regular meeting and August 5 work session. They wrote that the Council treats the workshops as regular meetings, "and appropriate notice is given even if they were to be seen as special meetings. The city posts notice of the workshops on its bulletin board and website by Friday of the prior week for Tuesday meetings and by Thursday of the prior week for Monday meetings." As evidence of those postings, they referred to the workshop agenda.</p> <p>The Commissioner respectfully disagrees that the August 5 workshop session was a regular meeting. It was not listed on the Council's regular meeting schedule, and as such was a special meeting, subject to the notice requirements of section 13D.04, subdivision 2.</p> <p><strong><em>Part B. </em></strong><em><strong>Special Meeting Notice.</strong></em> Mr. Norton and Ms. Torgerson stated that the Council posts notice of the workshops "on its bulletin board and website by Friday of the prior week for Tuesday meetings and by Thursday of the prior week for Monday meetings," thus fulfilling the special meeting notice requirements. The only documentation they provided in support are meeting minutes and a preliminary agenda for the workshop, neither of which definitively documents that the Council posted notice on its bulletin board at least three days prior to the August 5 special meeting work session.</p> <p>Ms. Gross stated, "this special meeting was not properly noticed as there was no listing in the newspaper of note for the city, the Sun Post." However, the Council was not required to post notice of the special meeting in the newspaper, unless it had received a written request for notice of special meetings. If so, then publishing in the newspaper of record is one way a public body may fulfill its obligation to provide notice to persons who have specifically asked to be notified of special meetings. (See section 13D.04, subdivision 2.)</p> <p>The agenda indicated that the Council would hold a closed work session immediately following the regular council meeting in Conference Room A, and stated that the purpose of the closed work session would be to "discuss pending personnel litigation regarding [two City peace officers]."</p> <p>The parties disagree and the Commissioner cannot verify that the Council properly noticed the August 5 special meeting work session. The August 5 <em>agenda</em> does contain the required content for notice of a special meeting, i.e., the date, time, place, and purpose of the meeting. If the Council posted the agenda as its special meeting notice on its bulletin board three days prior to the meeting, it fulfilled its obligation under section 13D.04, subdivision 2.</p> <p><strong><em>Part C. </em></strong><em><strong>Closed Meetings: Statement on the Record.</strong></em> Ms. Gross also contends that the Council did not make the required statement on the record before closing the workshop meeting. Minnesota Statutes, section 13D.01, subdivision 3, states, "[b]efore closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed."</p> <p>This subdivision requires that a public body do three things before closing a meeting: (1) make a statement on the record; (2) give the specific grounds permitting the closure of the meeting; and (3) describe the subject to be discussed. Per <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>:</p> <p class="opinion_quote">The Court of Appeals has provided direction on how this language is to be interpreted. In <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471 (Minn. Ct. App. 2004), the Court was asked to decide if a statement that a meeting is "being closed for a discussion of pending litigation under the attorney-client privilege" met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that "attorney client privilege" provided the grounds and "pending litigation" <em>identified</em> the subject to be discussed, but did not <em>describe</em> the subject as required by the statute. <em>The Free Press</em> at 476 (emphasis in the original).</p> <p>Ms. Gross wrote:</p> <p class="opinion_quote">Mayor Adams mentions the closed meeting to follow the regular council meeting but no formal statement on the record was made. Adams merely stated the purpose was to hear from staff regarding complaints related to [two police officers]. . There was no claim that the meeting was being closed for attorney-client privilege.</p> <p>Mr. Norton and Ms. Torgerson stated that the Council began the work session as an open meeting. They wrote, "[a]fter the start of the work session, the Mayor introduced a closed session for attorney client privileged discussion about pending litigation." Per <em>Free Press</em>, the Mayor's statement does not adequately describe the subject.</p> <p>Further, according to the work session meeting minutes, the Council voted to close the session, "for discussion regarding pending litigation." The only support Mr. Norton and Ms. Torgerson provided was the agenda, which was created before the meeting, and the minutes, which were created afterwards. Neither provides the evidence that the Council made the required verbal statement on the record, giving the specific grounds allowing it to close the meeting, and describing the subject to be discussed. As discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/266458" title="04-014" target="_blank">Advisory Opinion 14-014</a>:</p> <p class="opinion_quote">Chapter 13D does not define the phrase "on the record" in sections 13D.01 and 13D.05. However, the Commissioner has issued numerous opinions on the requirements to close a meeting (see Advisory Opinions 07-018, 13-012, 14-004, and 14-005) and has consistently interpreted those provisions to mean a verbal statement in open session.</p> <p>Accordingly, based on the record as presented to the Commissioner, and per the holding in <em>The Free Press</em>,the City did not comply with section 13D.01, subdivision 3.</p> <p><strong><em>Part D. </em></strong><em><strong>Closed Meetings: Permissible Topics.</strong></em>After a public body gives the statement on the record, it can discuss only those items it adequately described in the statement, and which are permissible topics to discuss in closed session.</p> <p>Ms. Gross contends that the Council discussed a number of issues that were not described on the agenda, including talking points "for addressing community concerns over a crime Crystal police had refused to investigate and ways to deflect community concerns over police administration corruption" She provided copies of emails among Council members, City administration, and a private citizen "confirming that these matters were discussed during the closed session."</p> <p>Mr. Norton and Ms. Torgerson wrote, "[t]he discussion was privileged, and the emails provided as "proof" of the improper discussion are not supportive of the allegation. Litigation status and strategy were the sole topics of the meeting."</p> <p>The Commissioner respectfully disagrees with Mr. Norton and Ms. Torgerson. The Minnesota Supreme Court has held that the attorney-client privilege exception to close a meeting will only apply when balancing the purposes of the attorney-client privilege against the purposes of the OML dictates the need for <em>absolute confidentiality</em>. While the Court has held that an entity as a defendant in a lawsuit can properly close a meeting, it cautioned that the exception "is to be employed or invoked cautiously and <em>seldom in situations other than in relation to threatened or pending litigation</em>." (Emphasis added.) (See <em>Minneapolis Star and Tribune v. the Housing and Redevelopment Authority</em>, 251 NW 2d 620 (Minn. 1976) and <em>Prior Lake American v. Mader</em>, 642 NW 2d 729 (Minn. 2002)).</p> <p>The City Administrator sent an email to Council members (and the attorney and staff) on August 6, 2013:</p> <p class="opinion_quote">As discussed last night, attached is a draft of talking points for use regarding last night's closed session discussion. Please review and let me know if you're okay with it. If so, I will use it in responding to calls from the media as well as residents. As we discussed last night, it's important that we all have use [sic] the same message.</p> <p>The Administrator also sent the following to a member of the public:</p> <p class="opinion_quote">At its August 5 meeting, the Crystal City Council met in closed session to discuss matters protected by attorney-client privilege. A summary of the Council's discussion during this session is: <br /> - The city council has full confidence in city and police management <br /> - The council has been briefed on [certain officers] [and] understands the seriousness of personnel issues. <br /> - The council has faith in the process currently underway, but acknowledges that <br /> - The council's goal is to have the process completed and issues resolved as expeditiously as possible. <br /> - Once the process is complete, the council will provide further information to the public</p> <p>The content of the emails demonstrates that the Council's discussion in closed meeting went beyond "litigation status and strategy," as evidenced by the bulleted statements above, and the OML does not provide grounds for closing a meeting to discuss those additional topics. Accordingly, the Council improperly discussed the issues detailed above in closed session, because those topics are not among those allowable under Chapter 13D. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267471" title="04-004" target="_blank">Advisory Opinion 04-004</a>.)</p> <p><strong>Issue 3</strong><em>. Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the meeting held on August 20, 2013?</em></p> <p>Ms. Gross wrote:</p> <p class="opinion_quote">According to the minutes of the closed work session, the council concluded the closed meeting then voted to open the meeting. However, they stayed in the closed meeting room and did not return to the regular council chambers nor did they notify the public, so individuals would not have known they could now enter the meeting to attend the public portion.</p> <p>Mr. Norton and Ms. Torgerson stated:</p> <p class="opinion_quote">The Requestor misunderstands the format of the Council meeting. First, the regular meeting convenes in the large Council chambers. After the regular meeting concludes, the Council holds another open meeting as a "work session" in a smaller room. The work session began as an open meeting. Then the Council may close the meeting with a statement as required by the OML. No violation of the OML occurred. The meeting was closed for attorney-client privileged discussion of pending litigation regarding employee RE. The discussion held was proper and the process for closing and reopening the meeting was appropriate. There is no "closed meeting room", just a smaller conference room often used for part of the Council meetings.</p> <p>The purpose of the OML is to provide the public with full access to the decision-making process of public bodies. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267496" title="12-008" target="_blank">Advisory Opinion 12-008</a>, the Commissioner commented, "he Board needs to review its process and procedures regarding its schedule of regular meetings, and its 'workshops' in order to avoid the kind of confusion that resulted here." The same advice holds for the Council's meeting format, as it functionally does not assure the public's right to be informed about the Council's official actions. <br /> <br /> Also in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267496" title="12-008" target="_blank">Advisory Opinion 12-008</a>, the Commissioner noted:</p> <p class="opinion_quote">Although the OML is silent on whether a public body may adjourn a meeting in closed session, it is the Commissioner's opinion that meetings should be adjourned or otherwise concluded in open session. Otherwise, the public cannot know if a meeting is adjourned, recessed or continued. As the issues Mr. Wente raised illustrate, whether or not a meeting has been adjourned, rather than recessed or continued, has implications for a public body's conduct at subsequent meetings. (See Minnesota Statutes, section 13D.05, subdivision 2(b), and section 13D.04, subdivision 4.)</p> <p>See also discussion of <strong><em>Issue 2</em></strong>, Part A (special meetings), B (special meeting notice) and C (statement on the record), for other issues Ms. Gross raised about this meeting. <br /> <br /> <strong>Issue 4</strong>. <em>Did the City Council comply with Minnesota Statutes, Chapter 13D, at the meeting held on September 3, 2013?</em></p> <p>According to Ms. Gross:</p> <p class="opinion_quote">The mayor suddenly announced at the beginning of the open forum that the council will not accept public comment on certain subjects This prohibition was not posted on the meeting agenda or meeting notice, which people relied upon to decide to attend the meeting. One person spoke up to respectfully object. The Mayor recessed the meeting to avoid hearing from people. This prevented a community member from speaking about a concern having nothing to do with one of the prohibited subjects. After some time, the meeting reconvened. Individuals attempted to re-enter the meeting however the chamber doors were closed and police blocked people out of the balance of the meeting. Police stated that under orders of the mayor, no members of the public would be allowed back into the room.</p> <p>Mr. Norton and Ms. Torgerson responded:</p> <p class="opinion_quote">The Requestor alleges that a change to procedures for the "open forum" somehow violated the OML. However, local open forum procedures are not an appropriate topic for this review. No provision of the OML applies to this allegation. The Council is allowed to regulate the length and topics addressed in the open forum. <em>Minn. Stat.</em> 412.191 <em>Subd 2.</em></p> <p class="opinion_quote">The Requestor alleges that the City's refusal to allow boisterous persons into the Council chamber somehow created an illegal "closed" meeting. That is not the case. Disruptive individuals need not be allowed into the public meeting room. The Council may maintain order at its meetings. <em>Minn. Stat.</em> 412.191 <em>Subd 2.</em></p> <p>Mr. Norton and Ms. Torgerson are correct; the OML does not require public bodies to allow for public comment, nor does it prohibit it. In addition, a public body may alter the agenda of a regular meeting as it sees fit. While the result may disappoint or inconvenience a member of the public, the Council's conduct did not violate the OML.</p> <p>According to statements Ms. Gross submitted, the Council barred members of the public who remained silent. The Council could properly bar disruptive persons under section 412.191, but did not have authority under the OML to exclude all non-disruptive members of the public, thereby creating a <em>de facto</em> closed meeting.</p> <p><strong>Issue 5<em>.</em></strong> <em>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), section 13D.04, and section 13D.05, at the meeting held on September 17, 2013?</em></p> <p>See discussion of <strong><em>Issue 2</em></strong>, Part A (special meetings), B (special meeting notice) and C (statement on the record).</p> <p><strong>Issue 6</strong>. <em>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), and section 13D.05, at the meeting held on October 1, 2013?</em></p> <p>See discussion of <strong><em>Issue 2</em></strong>, Part A (special meetings), B (special meeting notice) and C (statement on the record).</p> <p><strong>Issue 7<em>.</em></strong> <em>Did the City Council comply with Minnesota Statutes, section 13D.01, subdivision 3(a), section 13D.04, and section 13D.05, at the meeting held on December 3, 12 and 17, 2013?</em></p> <p>According to Ms. Gross and Mr. Norton, at the December 3 work session, the Council postponed its evaluation of the City Manager until December 12. That work session was convened as an open meeting and was then closed to discuss labor negotiations and the evaluation of the City Manager. The council held a work session on December 17. At its January 7, 2014, meeting, the Council passed a resolution summarizing its evaluation and reappointing the City Manager.</p> <p>Pursuant to section 13D.05, subdivision 3(a), a public body may close a meeting "to evaluate the performance of an individual who is subject to its authority. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation</p> <p>The Council evaluated the City Manager's performance at its December 12, 2013, meeting. Its next open meeting was December 17, 2013, but it did not summarize its evaluation at that meeting, as it was required to do. Thus, the Council did not comply with the OML regarding its summarization of the City Manager's performance evaluation.</p> <p>See also discussion of <strong><em>Issue 2</em></strong>, Part A (special meetings), B (special meeting notice) and C (statement on the record).</p> <p><strong>Issue 8</strong><em>. Did the City Council comply with Minnesota Statutes, section 13D.01, section 13D.04, and section 13D.05, at the meeting held on February 18, 2014?</em></p> <p>Ms. Gross wrote:</p> <p class="opinion_quote">During the open forum section of the city council meeting, the mayor abruptly stated that the meeting was recessed [at 7:37 p.m.]. .... Council members (except for one member) left the chambers.</p> <p class="opinion_quote">After several minutes, police officers came to the chambers and spoke privately to individuals to tell them that the meeting was resuming in another location Members of the public were not notified of the new location of the meeting or that it had resumed and thus, they continued to wait for the city council members to return to chambers. Throughout this period, notice was projected on the screen in the council chambers, in the lobby, and on the public access television that the meeting was in recess.</p> <p>According to statements submitted to the Commissioner, three members of the public followed the officers, and discovered that the Council had resumed meeting in a downstairs room, which was locked. Officers standing at the doors would not admit them without the police chief's approval, which she gave a few minutes later. One of the three returned to the regular meeting room and notified some other members of the public that the Council had resumed the meeting downstairs. At 8:33 p.m., the City Manager told those remaining in the regular meeting room that the meeting was in progress in the other room.</p> <p>According to Ms. Gross:</p> <p class="opinion_quote">While the regular city council meeting was in recess, the council began work session 2 listed on the agenda as starting after the council meeting. They completed one item on that work session agenda, adjourned the work session (using that exact language) and then reconvened the recessed city council meeting. At 8:57 p.m. they adjourned the regular council meeting and returned to the work session 2 agenda although that meeting was previously adjourned. Later, the mayor "adjourned" the work session without receiving a motion to adjourn.</p> <p><span class="opinion_quote">During the meetings downstairs, no documents related to the meetings were available to the public. <br /></span> <br /> Mr. Norton and Ms. Torgerson responded:</p> <p class="opinion_quote">The allegation is that the meeting was recessed and reconvened in another location. As shown in the minutes the Mayor called for a recess because of disruption of the meeting by certain persons who were refusing to comply with open forum requirements The Mayor then reconvened the meeting in another location within the building.</p> <p class="opinion_quote">Those who had engaged in the disruption were allowed to attend the continued meeting once they had ceased their disruptive behavior. The Mayor is allowed to adjourn or relocate a meeting because of disruption/disorderly behavior in the meeting. <em>Minn. Stat.</em> 412.191 <em>Subd 2.</em></p> <p>See discussion of <strong><em>Issue 4</em></strong>. Again, Mr. Norton and Ms. Torgerson are correct that the Council may eject individuals who disrupt a meeting, and the OML is silent regarding a public body's right to reconvene a public meeting in a different room. However, by not giving notice to the public, those who remained in the regular meeting room waiting for the recess to end had no opportunity to attend the public meeting the Council was conducting in the downstairs room.</p> <p>Also, Mr. Norton and Ms. Torgerson did not refute Ms. Gross's statement that a public copy of members' materials was not available in the downstairs meeting room, as required under section 13D.01, subdivision 6.</p> <p>For the above reasons, the Council did not comply with the OML in its conduct of the meeting.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Gross raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>The Commissioner cannot determine whether the City of Crystal City Council complied with Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law, in email communications with the City Manager on July 31, 2013.</li> <li>The Council's August 5, 2013, "workshop meeting" was a special, not regular meeting. The Commissioner cannot determine whether the City complied with the notice requirements of the OML, regarding Part A (special meetings), or B (special meeting notice). The Council did not properly close the meeting, per section 13D.01, subdivision 3, and section 13D.05 (Part C, statement on the record), and discussed impermissible topics in closed session (Part D).</li> <li>The Council's August 20, 2013, workshop was a special meeting. The Commissioner cannot determine whether the City complied with the notice requirements of the OML. The Council did not properly close the meeting, per section 13D.01, subdivision 3, and section 13D.05 (Part C).</li> <li>The Council did not comply with Minnesota Statutes, Chapter 13D, at the meeting held on September 3, 2013, because it improperly excluded members of the public who were not disruptive.</li> <li>See 2, regarding Part A (special meetings), B (special meeting notice) and C (statement on the record).</li> <li>See 2, regarding Part A (special meetings), B (special meeting notice) and C (statement on the record).</li> <li>See 2, regarding Part A (special meetings), B (special meeting notice) and C (statement on the record). The City Council did not comply with Minnesota Statutes, section 13D.05, subdivision 3(a), at the December 17, 2013, meeting, because it did not provide the summary of its evaluation of the City Manager's performance.</li> <li>See 4. Also, at the meeting held on February 18, 2014, the Council did not comply with Minnesota Statutes, section 13D.01, subdivision 6, because a public copy of members' materials was not available in the downstairs meeting room.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 23, 2014</p> <hr /> <br /></td> </tr> <tr> <td valign="top" align="left" /> </tr> </tbody> </table> </div>2676842662852671472662862662872662882662892662902662912022-01-24T14:39:30Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266458" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-13T15:14:43ZA member of the public asked whether a public body properly closed two meetings to discuss the purchase of property, pursuant to section 13D.05, subdivision 3(c)(3). At the meetings, both the Mayor and the City Attorney made comments preceding the closing of the meetings. The statements were insufficient under the OML because the statement must be given by the public body, include the grounds permitting or requiring the meeting to be closed, and specifically describe the subject of the meeting. Additionally, for sale or purchase of property, the statement must identify the particular properties. October 13, 2014; City of Corcoran36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On August 13, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Chuck Lymangood, dated August 12, 2014. In his letter, Mr. Lymangood asked the Commissioner to issue an advisory opinion regarding the Corcoran City Council members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>IPAD requested additional information/clarification from Mr. Lymangood, which he provided on August 27, 2014.</p> <p>On August 29, 2014, IPAD wrote to Mayor Ken Guenthner, Chair of the City Council (Council). In its letter, IPAD informed Mr. Guenthner of Mr. Lymangood's request and gave the members of the Council an opportunity to explain their position. On September 17, 2014, 2014, IPAD received a response, dated September 16, 2014, from Jeffrey Carson, Corcoran City Attorney.</p> <p>A summary of the facts as provided by Mr. Lymangood follows. The Council held two closed meetings, one on March 13, 2014, and one on June 12, 2014, to discuss obtaining an easement across a number of properties. Mr. Lymangood raised several issues with respect to those meetings and a subsequent data request. He wrote to the Commissioner:</p> <p class="opinion_quote">The individual properties discussed during the closed session were not properly disclosed at the meetings.At the first meeting, March 13, 2014, no disclosure was provided to the public of any of the properties that were to be discussed at the closed meeting (the city attorney simply stated, "the 13 properties"). At the second meeting, June 12, 2014, the city attorney, Jeff Carson, who is not a member of the public body, made an attempt to list the properties to be discussed at the closed meeting. He disclosed 11 property addresses and stated, "2 unassigned addresses on 101, the McGee property". <br /> <br /> The City of Corcoran did not properly respond to my request for data on July 14, 2014. <br /> <br /> The mayor, as a member of the public body, did not properly state on the record the specific grounds permitting the meeting to be closed. Based on the tapes of the meetings, the transcripts and the copy of the council minutes provided with this narrative, Mayor Guenthner, in my opinion did not state on the record the "specific grounds" permitting the meeting to be closed. Further, as mentioned above, the statements of the city attorney, Jeff Carson, do not relieve the public body from making the proper statement on the record as Mr. Carson is not a member of the public body.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Lymangood's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, sections 13D.01, subdivision 3 and 13D.05, subdivision 3, did the Corcoran City Council properly close the March 13, 2014, meeting to discuss the sale or purchase of property?</li> <li>Pursuant to Minnesota Statutes, sections 13D.01, subdivision 3 and 13D.05, subdivision 3, did the Corcoran City Council properly close the June 12, 2014, meeting to discuss the sale or purchase of property?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, did the City of Corcoran respond appropriately to a July 14, 2014, data request for all public data regarding easement negotiations?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong>Issue 1. </strong><em>Pursuant to Minnesota Statutes, sections 13D.01, subdivision 3 and 13D.05, subdivision 3, did the Corcoran City Council properly close the March 13, 2014, meeting to discuss the sale or purchase of property?</em></p> <p>Minnesota Statutes, section 13D.01, subdivision 3, provides: "before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed."</p> <p>This subdivision requires that a public body do three things before a meeting is closed: (1) make a statement on the record; (2) give the specific grounds permitting the closure of the meeting; and (3) describe the subject to be discussed. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>.)</p> <p>Chapter 13D does not define the phrase "on the record" in sections 13D.01 and 13D.05. However, the Commissioner has issued numerous opinions on the requirements to close a meeting (see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267617" title="07-018" target="_blank">Advisory Opinions 07-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266988" title="13-012" target="_blank">13-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267354" title="14-004" target="_blank">14-004</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267821" title="14-005" target="_blank">14-005</a>) and has consistently interpreted those provisions to mean a verbal statement in open session. In addition, the Commissioner recently opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267821" title="14-005" target="_blank">Advisory Opinion 14-005</a>, that per the plain language of section 13D.01, subdivision 3, the public body is responsible for making the statements and that a statement by the body's attorney is not sufficient to meet the strict language of the law.</p> <p>Minnesota Statutes, section 13D.05, subdivision 3(c)(3), permits a meeting to be closed, "to develop or consider offers or counteroffers for the purchase or sale of real or personal property." That clause further provides that the public body "must identify on the record the particular real or personal property that is the subject of the closed meeting."</p> <p>Mr. Lymangood provided the Commissioner with a partial transcript of the March 13, 2014, meeting. Shortly before going into closed session, the following exchange took place:</p> <p class="opinion_quote">Mr. Guenthner: With that, the one remaining item on the agenda is a closed session. We have been informed by the city attorney that he would like to present us information pertaining to easement acquisition.</p> <p class="opinion_quote">Mr. Carson: Yes, Mayor it is to view the appraisals that we now have for the 13 properties in the southeast sewer and water project.</p> <p class="opinion_quote">[The Mayor then addressed a boy scout who was in attendance.]</p> <p class="opinion_quote">Mr. Guenthner: Ok, so with that I will recess the public session. We will reconvene in closed session across the hall.</p> <p>Here, while Mr. Guenthner made a statement in open session, he did not state the grounds for closing the meeting and he did not provide a particularized description of the subject of the closed meeting. As the Commissioner has suggested in previous opinions, the simplest way to state the grounds for closing a meeting is to cite to the statutory provision allowing or requiring the closing. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>.) While <em>Mr. Carson</em> identified a broad subject of the closed meeting - the southeast sewer and water project - it is the Council's responsibility to make the required statement, and that responsibility cannot be delegated to an attorney. Further, the statement made by a member of the public body must also state the grounds for closing the meeting.</p> <p>With regard to identifying the particular real property on the record, as required by section 13D.05, subdivision 3(b)(3), Mr. Carson wrote, "the identification of the 13 properties being considered for utility easement acquisition as printed on the public agenda could only have meant the Southeast Sewer and Water Project properties." The agenda Mr. Carson submitted to the Commissioner for the March 13, 2014, meeting does not contain a list of properties. Nevertheless, listing the specific properties on an agenda would not satisfy the requirement to identify the properties on the record.</p> <p>As reflected in Mr. Carson's comment below, the Commissioner appreciates and is encouraged by the City's effort to comply with the requirements of Chapter 13D going forward:</p> <p class="opinion_quote">Notwithstanding our assertion that the public was well-informed and well-aware of those properties that were the subject of the closed meetings on March 13, 2014 and June 12, 2014, I believe that we can provide a clearer path to statutory conformity with the closed session requirements. City staff has met and reviewed the above complaints, together with the statutory requirements and we are developing a more deliberate process for closing meetings that will comply with the letter of the law. This review of the law, process and procedure has proven very helpful to the City. (Citations omitted.)</p> <p><strong>Issue 2. </strong><em>Pursuant to Minnesota Statutes, sections 13D.01, subdivision 3 and 13D.05, subdivision 3, did the Corcoran City Council properly close the June 12, 2014, meeting to discuss the sale or purchase of property?</em></p> <p>Mr. Lymangood's transcript of the June 12, 2014, documents the following exchange:</p> <p class="opinion_quote">Mr. Guenthner: So we have a scheduled closed session related to sewer and water. Jeff, did you want to comment before we do that?</p> <p class="opinion_quote">Mr. Carson: Thank you Mayor. What we will be doing is recessing in the closed session to consider negotiations for the sewer and water easements project for the following properties. They are all on County Road 101. That would be: 6635, 6705, 6735, 6801, 6819, 6851, 6863, 6901, 6951, 7205, 6648, and two unassigned addresses on 101 the McGee property.</p> <p class="opinion_quote">Mr. Guenthner: Ok, thank you Jeff, with that then the council we will recess the public session and reconvene in closed session after we receive information on the negotiations in closed session we will come back into public session.</p> <p>The analysis here is the same as Issue 1: the statement was inadequate and made by the Council's attorney, instead of the members of the public body. An example of a statement that would be sufficient in these circumstances is: "The Council is going into closed session under section 13D.05, subdivision 3(b)(3) to discuss south east sewer and water easement negotiations for the following properties: [identify the properties]."</p> <p>Additionally, and notwithstanding the fact that Mr. Carson's statements on the record were insufficient, Mr. Lymangood raised the issue of whether the statement "two unassigned addresses on 101 the McGee property," appropriately identified the particular properties that were the subject of the closed meeting. The Commissioner offers the following guidance. If there was information that would more clearly identify the location of the properties, then the identification was not "particular," within the meaning of section 13D.05, subdivision 3(b)(3). If, on the other hand, Mr. Carson's statement reflects how the properties are actually identified (i.e., in property records, on maps, etc.), then the identification would likely have been sufficient had it been provided by the Council.</p> <p><strong>Issue 3.  </strong><em>Pursuant to Minnesota Statutes, Chapter 13, did the City of Corcoran respond appropriately to a July 14, 2014, data request for all public data regarding easement negotiations?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Mr. Lymangood made the following data request to the City of Corcoran:</p> <p class="opinion_quote">This data request is for all public data regarding the SE Sewer and Water easement negotiations. The request includes, but is not limited to, tapes of council meetings in open session where the easement is discussed, council meeting minutes where the easement is discussed, etc. This request includes the city council meetings of March 13, 2014 and June 12, 201, as well as any other meetings.</p> <p>In his letter to the Commissioner, Mr. Lymangood wrote, that he only received five items and did not receive copies of the Council meeting minutes, legal billing statements regarding the easements, or a resolution that the Council approved at a previous meeting.</p> <p>Mr. Carson in his letter to the Commissioner wrote:</p> <p class="opinion_quote">[I]t appears to be true that certain of the requested data was omitted. The omission of the [requested information] was inadvertent and clearly not intentional</p> <p class="opinion_quote">With regard to the billings of the attorneys mentioned by Mr. Lymangood, I am not sure that in the normal course of events anyone would think to include such billing statements unless they were specifically asked for in the data request.</p> <p>Mr. Lymangood requested "all public data" about the easement negotiations. He specifically noted that he wanted access to council meeting minutes. The Commissioner realizes that when a government entity receives a data request for "all data" on a particular subject, it may not initially recognize the full scope of the request. In those instances, it is the responsibility of the government entity to clarify with the requester.</p> <p>The Commissioner urges both requesters and government entities to work together to resolve data requests in a timely and appropriate manner.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Lymangood raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Corcoran City Council did not properly close the March 13, 2014, because it did not make the required statement on the record, as required by Minnesota Statutes, sections 13D.01, subdivision 3, and 13D.05, subdivision 3.</li> <li>The Corcoran City Council did not properly close the June 12, 2014, because it did not make the required statement on the record, as required by Minnesota Statutes, sections 13D.01, subdivision 3, and 13D.05, subdivision 3.</li> <li>The City of Corcoran not respond appropriately to a July 14, 2014, data request for all public data regarding easement negotiations because the City did not provide access to all of the responsive data it maintained.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 13, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2664582664452022-05-16T18:47:03Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267397" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-13T15:14:43ZA requester asked for service and response or incident law enforcement data made public pursuant to section 13.82, subdivisions 3 and 6. The entity cited section 13.82, subdivisions 7 (active investigative data) and 13 (victim access to investigative data) and section 260B.171, subdivision 5 (peace officer records of children) to deny access to all data. The provisions cited by the entity are not applicable to the requests; the entity should have provided the requester with all public data that was responsive to her request.October 13, 2014; City of Waite Park36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2014). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On August 26, 2014, the Information Policy Analysis Division (IPAD) received a letter dated August 25, 2014, from Amy Kantorowicz. In her letter, Ms. Kantorowicz asked the Commissioner to issue an advisory opinion about her right to gain access to certain data that the City of Waite Park (City) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Shaunna Johnson, City Administrator, in response to Ms. Kantorowicz's request. The purposes of this letter, dated August 29, 2014, were to inform her of Ms. Kantorowicz's request and to ask her to provide information or support for City's position. On September 9, 2014, IPAD received a response, dated same from Gordon Hansmeier, City Attorney.</p> <p>A summary of the facts as Ms. Kantorowicz provided them follows. She wrote:</p> <p class="opinion_quote">After [contacting IPAD], I contacted the City of Waite Park by phone and requested a copy of the [City's data practices] policy. I also requested it twice in writing. Despite the requirement in Minnesota Section 13.025, subd. 4 to make the policies available to the public, I have not received a copy of the policy. I did receive an email indicating that Shaunna Johnson is the designated responsible authority for the City of Waite Park.</p> <p class="opinion_quote">On March 19, 2014, I sent three requests for data to the responsible authority, Shauna Johnson. One of the requests was resolved and the records were provided. The other two are attached.</p> <p>In her first request at issue here, Ms. Kantorowicz wrote:</p> <p class="opinion_quote">Pursuant to Minn. Stat. sec. 13.82 subd. 6and subd. 3 I am requesting the following information:</p> <p class="opinion_quote">All requests for service and response and incident data for [X]. [Two reports] are still pending cases and are private data so I have included a signed release from [Y] whom I believe to be a party in both incidents.</p> <p class="opinion_quote">Also, please provide a copy of the incident report for an accident on January 10, 2014 where [Y] was the driver. (Emphasis omitted.)</p> <p>Ms. Kantorowicz included Ms, Johnson's reply to this request in her submission to the Commissioner. Ms. Johnson wrote:</p> <p class="opinion_quote">We will not be providing the data in your Request for Law Enforcement Data involving [X and Y]. The requested data remains confidential or protected non public [sic] data. See Minn. Stat. Section 13.82, subd. 7. Further, based on the relationship and the history of the parties involved, we reasonably believe that the release of the requested data will interfere with an open investigation, as well as the justice process. See Minn. Stat. Section 13.82, subd. 13.</p> <p>After further communication with the City regarding this request, Ms. Kantorowicz received a letter from Mr. Hansmeier, dated March 25, 2014, which she also provided to the Commissioner. Mr. Hansmeier wrote:</p> <p class="opinion_quote">Please provide me with a copy of the "signed release" mentioned in the [X/Y request]. Please also provide a detailed explanation, with appropriate legal citations, why you believe you are entitled to the following information at this time and without limitations on the use or dissemination of the information through a protective order, etc. [Mr. Hansmeier then restated the data request for X and Y.]</p> <p>In her submission to the Commissioner, Ms. Kantorowicz noted, "to date, I have received no data pertaining to this request."</p> <p>In the second data request at issue here, dated March 19, 2014, Ms. Kantorowicz wrote:</p> <p class="opinion_quote">Pursuant to Minn. Stat. sec. 13.82 subd. 6and subd. 3 I am requesting the following information:</p> <p class="opinion_quote">All requests for service and response and incident data for [Z]</p> <p>Ms. Johnson's responded by letter on April 10, 2014. She wrote:</p> <p class="opinion_quote">We are in the process of obtaining documents responsive to your data request. Please confirm that someone in your office represents [Z]. If so, please provide a signed retainer agreement or a copy of any other document substantiating the attorney/client relationship. Please also confirm that the requested data is on behalf of [Z]. This information is necessary because of Minn. Stat. Section 260B.171, subd. 5.</p> <p>Regarding the City's response to this request, Ms. Kantorowicz wrote to the Commissioner:</p> <p class="opinion_quote">First, [the City] requested a signed retainer agreement showing that our office represents the subject of the data practices request [Z]. Second, they quoted a statute that pertains to juvenile records which is not applicable in this case because [Z] is an adult.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Kantorowicz's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, did the City of Waite Park respond appropriately to two data requests dated March 19, 2014, for certain law enforcement data?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, did the City of Waite Park respond appropriately to a request for a copy of the policy required by Minnesota Statutes, section 13.025?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong>Issue 1.</strong><em>Pursuant to Minnesota Statutes, Chapter 13, did the City of Waite Park respond appropriately to two data requests dated March 19, 2014, for certain law enforcement data?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Subdivision 7 of that section allows a law enforcement agency to classify some law enforcement data as confidential or protected nonpublic while there is an active investigation. Certain other law enforcement data are always public, regardless of whether there is an active investigation. Section 13.82, subdivisions 2 (arrest data), 3 (request for service data), and 6 (response or incident data), list data that are always public. <br /> <br /> <em>March 19, 2014, request for data about X and Y.</em> <br /> In her first March 19, 2014, request, Ms. Kantorowicz requested copies of, "all response or incident or request for service data" for a specific individual. She also requested a copy of an incident report involving a traffic accident for another individual.</p> <p>The Commissioner has the following comments. Ms. Kantorowicz requested public data, but then stated that some of the data are "pending cases and are private," and included a signed release from Y with the request. However, data listed in section 13.82, subdivisions 3 and 6, are always public, regardless of whether there is an active investigation, and therefore a signed release (consent) is not necessary. In contrast, data classified by section 13.82, subdivision 7, are confidential or protected nonpublic (not private). Consequently, even with a signed release, Ms. Kantorowicz, or any other member of the public could not get access to active investigative data. (Individuals may not consent to release of confidential data about themselves. See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267555" title="11-015" target="_blank">Advisory Opinion 11-015</a>.) To the extent, the release Ms. Kantorowicz provided contributed to confusion about the appropriate response, the City was responsible for clarifying the request. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266994" title="06-004" target="_blank">Advisory Opinions 06-004</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267419" title="06-029" target="_blank">06-029</a>.) Here, the City denied Ms. Kantorowicz access to all of the data she requested.</p> <p>Section 13.82, subdivision 13, does not apply to this situation. This section allows a "prosecuting authority" to release investigative data to a victim of a crime or an alleged crime. Ms. Kantorowicz did not request access to investigative data as a crime victim or a crime victim's representative; she requested public data.</p> <p>In addition, contrary to Mr. Hansmeier's March 25 letter, Chapter 13 does not allow government entities to require a person "to identify themselves, state a reason or justify a request to gain access to public government data" unless authorized by statute. (See Minnesota Statutes, section 13.05, subdivision 12.) Members of the public may have access to public data for any reason.</p> <p>The City should have provided Ms. Kantorowicz with all public request for service and response or incident data for X and any public data in the traffic incident report for Y.</p> <p><em>March 19, 2014, request for data about Z.</em> <br /> While section 13.82 applies to most law enforcement data, peace officer records about children who are or may be delinquent, or who may be engaged in criminal acts are classified pursuant to Minnesota Statutes, section 260B.171, subdivision 5. Generally, that section classifies those data as private. (Similar to section 13.82, subdivision 13, section 260B.171, also contains a provision that allows for a victim of an allegedly delinquent juvenile to obtain access to certain data about the juvenile. See section 260B.171, subdivision 5(h).)</p> <p>In response to the Commissioner's letter, Mr. Hansmeier wrote:</p> <p class="opinion_quote">The voluminous documents that were gathered by the City of Waite Park in response to the [Y] request contain multiple references to "children who are or may be delinquent or who may be engaged in criminal acts". This information is clearly "private" data pursuant to Minn. Stat. Section 260B.171, subd. 5. In order to determine the permissible scope of information to release, the City of Waite Park needed to know whether Ms. Kantorowicz was a representative of the "child's parent or guardian". If she was not, the "Peace officer records of children" could not be disclosed to Ms. Kantorowicz because the request was not made by the "child's parent or guardian."</p> <p>Mr. Hansmeier is correct; the City has an obligation to protect not public data, including peace officer records of children. However, Ms. Kantorowicz requested public request for service and response or incident data about Z, who is an adult. She did not request private data on Z, nor did she request private data on any other individuals. Therefore, while an entity is responsible for clarifying an ambiguous request, the City's response here is incongruous with the data request. The City argued that it could not respond to the data request based on the classification of data that Ms. Kantorowicz had not requested.</p> <p>The City should have provided Ms. Kantorowicz with the public data that were responsive to her request and redacted any data that were otherwise not public.</p> <p><strong>Issue 2.</strong><em>Pursuant to Minnesota Statutes, Chapter 13, did the City of Waite Park respond appropriately to a request for a copy of the policy required by Minnesota Statutes, section 13.025?</em></p> <p>Under Minnesota Statutes, section 13.025, the responsible authority "must prepare a written policy detailing its data access policies." Further, it provides that the responsible authority "shall make copies of the policies available to the public." The responsible authority may fulfill that obligation by distributing free copies, posting the policies in a conspicuous place, or posting it on the entity's website. Minnesota Rules, Chapter 1205 also provides guidance about access procedures for members of the public and data subjects.</p> <p>The Commissioner has issued numerous opinions on the access policies and procedures required by Chapter 13. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267246" title="04-049" target="_blank">Advisory Opinions 04-049</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266477" title="05-003" target="_blank">05-003</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266427" title="13-007" target="_blank">13-007</a>.) The requirement for access policies is longstanding. The Legislature enacted the requirements in Minnesota Statutes, section 13.03, in 1999 and they went into effect January 1, 2001. The Legislature transferred the access policy provisions to section 13.025 in 2012.</p> <p>Here, Ms. Kantorowicz asked the City for a copy of the policy required by section 13.025, identifying the responsible authority. Mr. Hansmeier replied and stated, "Shaunna Johnson is the designated person for data practices for the City of Waite Park." He then directed Ms. Kantorowicz to forward all requests to him.</p> <p>Mr. Hansmeier, in response to the Commissioner, wrote:</p> <p class="opinion_quote">With regard to the request for the City of Waite Park's written policy, the City of Waite Park's written policy is memorialized in Chapter 13 of the Minnesota Statutes. In responding to government data requests, the City of Waite Park complies with applicable provisions of Chapter 13 including but not limited to Minn. Stat. Section 13.03, Minn. Stat. Section 13.04, Minn. Stat. Section 13.05 and Minn. Stat. section 13.82.</p> <p>The Commissioner respectfully disagrees with Mr. Hansmeier's position. Reference to Chapter 13 is not sufficient to satisfy the requirement for written access policies. The provision requires that the responsible authority proactively prepare written data access policies. In the absence of written policies identifying designees, the responsibility for responding to data requests is retained by the responsible authority. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267605" title="00-21" target="_blank">Advisory Opinion 00-021</a>.) While Mr. Hansmeier identified Ms. Johnson as the "responsible person for data requests," the City did not provide documentation that Ms. Johnson was appointed as the responsible authority or a designee for the City, nor did it provide documentation that Mr. Hansmeier had that authority. More specifically, the purpose of the statutory requirement "to prepare a written policy detailing its data access policies" is to articulate to whom the public should direct data requests and what procedures the City will follow to comply with Chapter 13.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues raised by Ms. Kantorowicz is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Pursuant to Minnesota Statutes, Chapter 13, the City of Waite Park did not respond appropriately to requests for public law enforcement data about X, Y, and Z.</li> <li>Pursuant to Minnesota Statutes, Chapter 13, the City of Waite Park did not respond appropriately to a request for a copy of the policy required by Minnesota Statutes, section 13.025.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 13, 2014</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2673972667362664262022-01-18T19:21:00Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267489" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-10-08T15:14:43ZA requester asked for the “raw data file” that contained de-identified employee responses to a survey. The request was denied based on section 13.43, subdivision 7(a), which classifies the data as private personnel data. Personnel data are defined as “data on individuals”; the data in question are not data on individuals because an individual cannot “be identified as the subject of that data” (section 13.02, subdivision 5). Therefore, the data are not personnel data, and are presumptively public. The city’s contractor that conducted the survey said it would “sanitize” the raw data to remove the identity of responders before providing the “raw data file” to the entity; any data that could identify an employee who was the subject of a suggestion are private personnel data. October 8, 2014; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On August 20, 2014, the Information Policy Analysis Division (IPAD) received a letter dated same, from Curtis Gilbert, on behalf of Minnesota Public Radio (MPR). In his letter, Mr. Gilbert asked the Commissioner to issue an advisory opinion about his right to gain access to certain data from the City of Minneapolis.</p> <p>IPAD, on behalf of the Commissioner, wrote to Casey Joe Carl, City Clerk and responsible authority for the City, in response to Mr. Gilbert's request. The purposes of this letter, dated August 26, 2014, were to inform him of Mr. Gilbert's request and to ask him to provide information or support for the City's position. On September 8, 2014, IPAD received a response, dated September 2, 2014, from Mike Bloom, Assistant City Attorney.</p> <p>A summary of the facts as Mr. Gilbert provided them follows. In various communications in June and July of 2014, Mr. Gilbert asked for access to:</p> <p class="opinion_quote"><em>All data contained in employee responses to the city's 2014 Employee Engagement Survey.</em></p> <p class="opinion_quote"><em>This data I seek is described in the city's contract with Kenexa as the "raw data file." That section spells out procedures for sanitizing the data to remove personally identifiable information such as employee numbers. To be clear, I am requesting the sanitized data. I am not seeking any information that would identify individual employees</em>.</p> <p>The City's contract with Kenexa contains the following provision:</p> <p class="opinion_quote"><em>Kenexa will, upon written request, provide Customer with a raw data file The data file will include Individual responses to the survey including answers to opinion questions and coding demographics Prior to providing the data file, Kenexa and Customer will agree on a reasonable sanitization that Kenexa will perform on the data file solely for the purpose of maintaining assurances of respondent confidentiality and anonymity (such as removal of employee IDs).</em></p> <p>The City denied Mr. Gilbert's request. Subsequently MPR's attorney objected; Mr. Bloom responded that the City believed that the "raw data file" is classified as private data on City employees.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Gilbert's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the City of Minneapolis respond properly to a request for the "raw data file" related to the City's 2014 Employee Engagement Survey?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>"Data on individuals" means all government data in which any individual is or can be identified as the subject of that data. (Minnesota Statutes, section13.02, subdivision 5.)</p> <p>Under Minnesota Statutes, section 13.43, "personnel data" are defined as "government data on individuals maintained because the individual is or was an employee of or an applicant for employment by a government entity." Subdivision 2 lists the types of personnel data that are public; subdivision 4 classifies most other personnel data as private. Thus, the general presumption that all government data are public is reversed in section 13.43; personnel data are presumptively private.</p> <p>Pursuant to section 13.43, subdivision 7(a):</p> <p><em><span class="opinion_quote">Personnel data includes data submitted by an employee to a government entity as part of an organized self-evaluation effort by the government entity to request suggestions from all employees on ways to cut costs, make government more efficient, or improve the operation of government. An employee who is identified in a suggestion shall have access to all data in the suggestion except the identity of the employee making the suggestion.</span></em></p> <p>In his opinion request, Mr. Gilbert stated:</p> <p class="opinion_quote"><em>Our position is that the data are not "data on individuals," and thus are presumed to be public government data. According to the city's contract the company is required to perform "reasonable sanitization on the data file solely for the purposes of maintaining assurances of respondent confidentiality and anonymity" before furnishing the file to the city. In other words, the raw data file comes to the city already stripped of "government data in which any individual is or can be identified as the subject of that data," and thus it could not be "data on individuals" as defined in section 13.02, subd. 5.</em></p> <p>According to Mr. Bloom, the "raw data file" related to the City's 2014 Employee Engagement Survey is classified as private personnel under section 13.43. He wrote:</p> <p class="opinion_quote"><em>The "raw data file" in question consists of data submitted to the City by its employees as part of the City's organized self-evaluation effort through which the City requested suggestions from its employees on ways to cut costs, make government more efficient, or otherwise improve government operation.</em></p> <p class="opinion_quote">Subdivision 7a is silent as to the classification of employee suggestion data. Because employee suggestion data is not classified as public under section 13.43, subdivision 2, it is private data on individuals under section 13.43, subd. 4.</p> <p class="opinion_quote">MPR's position is that the data being requested are not "data on individuals," and thus are presumed to be public government data. MPR's position has no merit. Section 13.43, subd. 7a provides that the employee suggestion data being requested is "personnel data." Personnel data is defined as "government data on individuals maintained because the individual is or was an employee of ... a government entity." By stating that personnel data includes employee suggestion data, the legislature has already determined that employee suggestion data is data on individuals. The language in Section 13.43 is clear and unambiguous and dictates the result - that employee suggestion data is personnel data that the data is classified as private. Moreover, there is no need to ascertain whether employee suggestion data also meets the statutory definition contained in section 13.02, subd. 5. This is because Section 13.43, subd. 4, protects as private all personal data not listed in subd. 2.</p> <p class="opinion_quote">Upon examining section 13.43, subd. 7a, it is clear the Legislature intended that employee suggestion data collected from employees be protected. Had the legislature intended a different result, it would not have placed employee suggestion data in section 13.43. Likewise, the Legislature could have easily provided that employee suggestion data are public by simply including employee suggestion data in subdivision 2. Instead, by operation of section 13.43, the Legislature ensured that employee suggestion data would remain private, since it falls under subdivision 4. [Emphasis omitted.]</p> <p>The Commissioner acknowledges Mr. Bloom's arguments regarding the application of section 13.43, subdivision 7a, but respectfully disagrees with the City's position.</p> <p>In order to be personnel data subject to classification under section 13.43, the data must be data on individuals. De-identified data are not data on individuals because an individual cannot "be identified as the subject of that data". Mr. Bloom stated that because employee suggestion data are included in the definition of personnel data, even de-identified data are private under the operation of section 13.43. However, once "sanitized" or de-identified, the data in question are no longer personnel data, because they are not data on individuals.</p> <p>Accordingly, in order for de-identified data to be inaccessible to the public, they would need to be classified as <em>nonpublic</em> data. (Section 13.02, subdivision 9.) There is no statute that classifies the data held by the City as nonpublic.</p> <p>As Mr. Bloom noted, section 13.43, subdivision 7a, does not classify suggestion data. Instead it clarifies that in data that are not de-identified, an "employee who is identified in a suggestion shall have access to all [otherwise private personnel] data in the suggestion except the identity of the employee making the suggestion."</p> <p>The Commissioner notes that per the City's contract with Kenexa, they "will agree on a reasonable sanitization that Kenexa will perform on the data file solely for the purpose of maintaining assurances of <em>respondent confidentiality</em> and anonymity." It is not clear whether the "sanitization" also removes identifying data on any employees mentioned by employee respondents. If the raw data file the City maintains contains data that identify an employee who is the subject of another employee's suggestion, those data are private personnel data.</p> <p>Mr. Gilbert also questioned whether the purpose of the City's employee engagement survey fits the description of the specific kind of survey to which section13.43, subdivision 7(a), applies. However, in this context it doesn't matter what kind of employee survey the City conducted. Mr. Gilbert asked only for data in which an individual cannot be identified, and per the terms of its contract, Minneapolis maintains those data. Thus, Mr. Gilbert did not ask for access to private personnel data. He asked for the "sanitized" raw data file, which does not contain data in which an individual employee is identified. Therefore, those data are presumptively public under section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Gilbert is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the City of Minneapolis did not respond properly to a request for the "raw data file" related to the City's 2014 Employee Engagement Survey. The City must redact data that identify a City employee, if the file contains such data.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: October 8, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2674892665122667202022-01-18T19:20:57Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267574" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-09-17T15:14:43Z A requester asked for all data submitted in response to RFPs for third party auditors to conduct, or help conduct certain audits, and all resulting contracts. The request was denied based on the entity’s conclusion that all of the data are not public data that “relate to an audit” under section 3.979, subdivision 3(a). Section 13.591, subdivision 3, generally classifies most of the data in question as public, once the selection/evaluation process is complete (except trade secrets), other than data “relating to an audit” under section 3.979, subdivision 3(a). *Pursuant to Minnesota Statutes, section 13.072, subdivision 2, “[t]he commissioner … shall indicate when the principles stated in an opinion are not intended to provide guidance to all similarly situated persons or government entities.” The Commissioner does not intend for this opinion to be generally applicable.September 17, 2014; Office of the Legislative Auditor36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note: Pursuant to Minnesota Statutes, section 13.072, subdivision 2, "[t]he commissioner shall indicate when the principles stated in an opinion are not intended to provide guidance to all similarly situated persons or government entities." The Commissioner does not intend for this opinion to be generally applicable.</strong></p> <h2>Facts and Procedural History:</h2> <p>On July 29, 2014, the Information Policy Analysis Division (IPAD) received a letter dated July 28, 2014, from JT Haines, on behalf of Public Record Media (PRM). In his letter, Mr. Haines asked the Commissioner to issue an advisory opinion about his right to gain access to certain data the Office of the Legislative Auditor (OLA) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to James R. Nobles, the Legislative Auditor, in response to Mr. Haines's request. The purposes of this letter, dated July 30, 2014, were to inform him of Mr. Haines's request and to ask him to provide information or support for OLA's position. On August 4, 2014, IPAD received a response, dated July 31, 2014, from Mr. Nobles.</p> <p>A summary of the facts as Mr. Haines provided them follows. In a letter dated April 22, 2014, PRM requested access to certain data maintained by OLA. Of relevance here, PRM asked for:</p> <p class="opinion_quote">1. Any and all RFPs issued by the Office of the Legislative Auditor and/or the State of Minnesota that seek accounting firms or other entities to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subd. 9(d);</p> <p class="opinion_quote">2. Any and all bids submitted in response to the RFPs identified in Item 1, above;</p> <p class="opinion_quote">3. Any and all contracts executed between the Office of the Legislative Auditor and/or the State of Minnesota and any entity contracted to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subd. 9(d).</p> <p>Mr. Haines wrote that OLA responded on April 29, 2014, by providing an RFP responsive to Item 1 of PRM's request, and an OLA "project description" document dated January 2014, entitled "Managed Care Organizations' Administrative Expenses." He wrote that OLA stated, "'all of the other data listed in your request are currently classified as not public pursuant to Minnesota Statutes 2013, 3.979, until we release our final report,' and that 'any information or data that is otherwise classified as not public will continue to retain such classification following release of our report later this year.'"</p> <p>In response, in a letter dated May 8, 2014, PRM wrote to OLA:</p> <p class="opinion_quote">Minn. Stat. 13.591, Subd. 3(b) states that 'data submitted by a business to a government entity in response to a request for proposal; as defined in section 16C.02, subdivision 12, are private or nonpublic until the time and date specified in the solicitation that proposals are due, at which time the name of the responder becomes public.' The same is true of the names of bidders submitting in response to a request for bids under Minn. Stat. 13.591, Subd. 3(a).</p> <p class="opinion_quote">According to the RFP produced by your office, proposals and/or bids were due on August 23, 2013. As of that date, the names of all responders and/or bidders were public data, and thereby should be released in response to Item 2 of my request.</p> <p class="opinion_quote">And, if OLA has completed its selection and/or evaluation process for the proposals it solicited, all remaining data submitted by responders/bidders is public, with the exception of trade secret data, pursuant to Minn. Stat. 13.591, Subd. 3(a), (b).</p> <p class="opinion_quote">If all responses/bids were rejected after the completion of the selection/evaluation process, all of the data described in the paragraph above would be public, and should be produced as responsive to Item 2 of my request, with one exception: If a government entity plans a resolicitation of proposals/bids within one year of the proposal/bid opening date, all data except the names of responders/bidders are private or nonpublic during that time. If this is the case, please clarify as much, as is obligated by Minn. Stat. 13.03, Subd. 3(f) (which requires that you describe the 'specific statutory section, temporary classification' upon which a denial is based).</p> <p class="opinion_quote">Item 3 of my request seeks 'any and all contracts executed between (OLA) and/or the State of Minnesota and any entity contracted to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, Subd. 9d.'</p> <p class="opinion_quote">If any such contracts exist, they are presumptively public pursuant to Minn. Stat. 13.03, Subd. 1, which states that 'all government data collected, created, received, maintained or disseminated by a government entity shall be public unless classified by statute, or temporary classification' as not public data of any kind. See Data Practices Advisory Opinion 03-027 for its discussion of the presumptively public status of state contracts.</p> <p>According to OLA's RFP, with the exception of any trade secrets, "[a]ll materials submitted in response to this RFP will become property of OLA and will become public record in accordance with Minnesota Statutes [section] 13.591, after OLA completes evaluation of the proposals."</p> <p>In his request to the Commissioner, Mr. Haines stated that PRM wrote again to OLA on May 30, 2014, and also contacted OLA by telephone, asking for a response to its May 8 letter to OLA. He wrote, "[n]o response has been provided to date."</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Haines's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the Office of the Legislative Auditor respond appropriately to a request for the following data?</p> <ul> <li>All bids submitted in response to the RFPs issued by the Office of the Legislative Auditor and/or the State of Minnesota that seek accounting firms or other persons to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subdivision 9(d).</li> </ul> <ul> <li>All contracts executed between the Office of the Legislative Auditor and/or the State of Minnesota and any person contracted to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subdivision 9(d).</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 256B.69, subdivision 9(d) is a relatively new section of law that requires that:</p> <p class="opinion_quote">The legislative auditor shall contract with an audit firm to conduct a biennial independent third-party financial audit of the information required to be provided by managed care plans and county-based purchasing plans under subdivision 9c, paragraph (b).</p> <p>Pursuant to Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Under Chapter 13, government data include procurement data under Minnesota Statutes, section 13.591.</p> <p>Pursuant to Minnesota Statutes, section 3.979, subdivision 1, the Legislative Auditor is subject to Chapter 13.</p> <p>In his response to the Commissioner, Mr. Nobles stated, <br /> <br /> <span class="opinion_quote">I am writing to inform you that the documents Mr. Haines seeks are part of an ongoing OLA audit and are, therefore, currently classified as not public. <em>Minnesota Statutes</em> 2013, 3.979, subd. 3(a), states the following:</span></p> <p class="opinionquoteinquote">... Data relating to an audit are not public or with respect to data on individuals are confidential until the final report of the audit has been released by the legislative auditor or the audit is no longer being actively pursued. Upon release of a final audit report by the legislative auditor, data relating to an audit are public except data otherwise classified as not public.</p> <p class="opinion_quote">This provision of law is clear. It classifies all documents that are 'related to' an ongoing audit as not public, even documents that are otherwise public. The not public classification does not end until the Legislative Auditor completes the audit and issues a final report, or is no longer conducting the audit. We anticipate that our audit of managed care organizations will be completed this fall.</p> <p class="opinion_quote">To grant Mr. Haines access to the documents would violate state law and damage an important safeguard in the audit process. In fact, even legislators, including members of the Legislative Audit Commission, are not given access to OLA work papers until an audit is completed. In sum, Mr. Haines will have to be patient and allow the law to work as intended.</p> <p>The Commissioner acknowledges the broad authority OLA has to protect "data relating to an audit" under section 3.979 subdivision 3(a). The Commissioner also understands that section 13.591 provides for public access to the procurement process, including bids/responses related to the solicitation of contracted services. Here, the statutes appear to be irreconcilable.</p> <p>Minnesota Statutes, section 645.26, sets forth the rules for determining which provision prevails when a general provision conflicts with a special provision in the same or another law. However, here, there appear to be two special provisions, and the general canons of statutory construction do not provide clear guidance to resolve the conflict as to which provision prevails in this situation. (See Minnesota Statutes, Chapter 645.). Consequently, this opinion seeks to distinguish between procurement related information which is public, and data related to an audit, which are also public but not until the audit is complete.</p> <p>Data in government contracts are presumptively public (see Minnesota Statutes, section 13.03, subdivision 1, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267672" title="03-027" target="_blank">Advisory Opinion 03-027</a>). The proposals/bids were due August 23, 2013, and the names of the bidders/responders were public on that date under section 13.591, subdivision 3. All of the remaining data (except for any trade secrets) a business/vendor provides become public when the government entity either completes the "selection process" for bids, or completes the "evaluation process" for proposals (see section 13.591, subdivision 3(a) and (b)). Assuming the evaluation process is complete, then the responses are public.</p> <p>The Commissioner has not reviewed the data in question, but expects the data predominantly consist of procurement information. As noted above, data related to the procurement process, generally are public under section 13.591, subdivision 3. For example, the names of the responders, their experience conducting this kind of audit, and the names/qualifications of their personnel are likely data that OLA maintains, but are not data related to an audit. Any other data of this sort are also data that are public under section 13.591.</p> <p>Similarly, data in contracts OLA maintains are presumptively public, and likely not data that qualify for protection under section 3.979. For example, names of the firms(s) with whom OLA enters into a contact, the firm's qualifications, the contractual period, and the dollar amount the parties agree to, are not data subject to section 3.979.</p> <p>Following OLA's reasoning that all of the procurement and contract data are protected as data relating to an audit, and consequently not public, then OLA would be unable to share those data with anyone in the public until the audit is complete. Per section 3.979, subdivision 4, before releasing a report, OLA has authority to share data relating to an audit only "for the purpose of review and verification of the data". The practical effect of that provision is that if OLA determines that PRM is not entitled to get access to the bids/responses and contract(s), then neither are the managed care plans who are being audited, or any other member of the public.</p> <p>As noted above, Chapter 645 does not provide clear guidance here. However, section 645.17 (1), provides that "the legislature does not intend a result that is absurd, impossible of execution, or unreasonable."</p> <p>Thus, OLA may rely on the data classifications provided in section 13.591, in order to effectively perform its legislative duties while properly protecting not public data. Under section 13.591, OLA may share with the managed care firms (and the public), public data such as name of bidders and bid documents, professional experience of the vendor, and information about the vendor, name of vendor(s) contracted with and how much they are paid, and still protect data related to an audit under section 3.979.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Haines is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the Office of the Legislative Auditor must provide appropriate access to the data in question as follows:</p> <ul> <li>All bids submitted in response to the RFPs issued by the Office of the Legislative Auditor and/or the State of Minnesota that seek accounting firms or other persons to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subdivision 9(d)c, other than data "relating to an audit" under section 3.979, subdivision 3(a).</li> </ul> <ul> <li>All contracts executed between the Office of the Legislative Auditor and/or the State of Minnesota and any person contracted to conduct, or help conduct, the audits required by Minn. Stat. 256B.69, subdivision 9(d), other than data "relating to an audit" under section 3.979, subdivision 3(a).</li> </ul> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Matthew Massman <br /> Acting Commissioner</p> <p class="date">Dated: September 17, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2675742666782668062662562022-01-18T19:20:57Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266929" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-08-05T15:14:43Z A member of the public asked about the copy of printed materials at a township meeting. Minnesota Statutes, section 13D.01, subd. 6, requires public bodies to make at least one copy of any printed materials distributed to the public body members available during a public meeting. The member of the public stated that the Township Planning Commission did not include a copy of the draft comprehensive plan. The Township’s attorney responded that the Commission did include the comprehensive plan in the public packet of materials. Though the Commissioner could not resolve the factual dispute, he offered some practical advice to the Township, including offering more than one copy of the materials, posting the materials online, or listing the contents of the materialsAugust 5, 2014; Baldwin Township Planning Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On June 23, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Chuck Nagle, dated June 19, 2014. In his letter, Mr. Nagle asked the Commissioner to issue an advisory opinion regarding the Baldwin Township Board members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>On June 24, 2014, IPAD wrote to Jay Swanson, Chair of the public body. In its letter, IPAD informed Mr. Swanson of Mr. Nagle's request and gave the members of the Board an opportunity to explain their position. On July 16, 2014, 2013, IPAD received a response, dated same, from Robert Ruppe, attorney for the Board.</p> <p>A summary of the facts as provided by Mr. Nagle follows:</p> <p class="opinion_quote">On March 7, 2011, the Baldwin Township Board approved Ordinance 200, establishing a planning commission. The ordinance provides that the Baldwin Town Board will appoint planning commission members</p> <p class="opinion_quote">On May 22, 2014 the Baldwin Planning Commission met in special session. The meeting was properly noticed. There was a printed materials packet available for public inspection at the front table. It contained only the prior meeting draft meeting minutes for approval. The consulting planner[-]prepared draft of the Baldwin comprehensive plan was distributed to all planning commission members and discussed in detail. No copy was made available for public inspection in any form.</p> <p class="opinion_quote">On May 23, 2014 the Baldwin Town Board met in special session. The meeting was properly noticed. During the Citizens Open Forum agenda item I stated the facts above and asked if a copy of the comprehensive draft plan be made available for me to view [sic]. The response from Chairman Swanson was that it was only a draft and the consulting planning [sic] would need to be contacted to determine her wishes.</p> <p>Mr. Ruppe clarified the dates in Mr. Nagle's opinion request. The Planning Commission reviewed the comprehensive plan at a meeting on May 21, 2014, and the Town Board held a subsequent regular meeting on May 22, 2014, which is also reflected by the meeting minutes submitted by Mr. Nagle.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Nagle's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Baldwin Planning Commission comply with Minnesota Statutes, section 13D.01, subdivision 6, at the May 21, 2014, meeting?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no dispute that the Planning Commission is subject to the Open Meeting Law. (Minnesota Statutes, section 13D.01, subdivision 1(c)(3), includes a "commission of a public body.")</p> <p>Minnesota Statutes, section 13D.01, subdivision 6, provides:</p> <p class="opinion_quote">Public copy of members' materials. (a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:</p> <p class="opinionquoteinquote">(1) distributed at the meeting to all members of the governing body; <br /> (2) distributed before the meeting to all members; or <br /> (3) available in the meeting room to all members;</p> <p class="opinion_quote">shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</p> <p>Mr. Nagle contends that the Planning Commission did not provide a copy of the comprehensive plan in its members' materials at its May 21, 2014, meeting. On behalf of the Town Board, Mr. Ruppe wrote:</p> <p class="opinion_quote">The Planning Commission had available for public inspection all of the documents that were being discussed by the Planning Commission at the meeting. Contrary to Mr. Nagel's [sic] allegations, the documents available for public inspection included a copy of the draft Comprehensive Plan being worked on by the Planning Commission. As such the Planning Commission has complied with the provisions of Minnesota Statute, section 13D.01, subdivision 6. Further, Planning Consultant Bridget Chard read the entire draft of the Comprehensive Plan aloud at the May 22nd meeting so that all members of the public could follow along with the Planning Commission. If the materials were missing from the packet as alleged by Mr. Nagel [sic] it was most likely removed by a member of the public interested in the issue.</p> <p>The Commissioner cannot resolve this factual dispute. To the extent that the Planning Commission did not include a draft of the comprehensive plan in the public copy of the members' materials, it did not comply with section 13D.01, subd. 6. If, on the other hand, the draft was included in the materials as Mr. Ruppe suggests, the Commission complied.</p> <p>Managing the public copy of the members' materials is a common issue for public bodies and members of the public. The Commissioner would like to offer the following guidance. The plain language of section 13D.01, subdivision 6, requires that the public body make "at least one copy" of members' materials available to the public at the meeting. In providing only one complete copy, the body fulfills its obligation. However, as people review its contents, there is a greater chance that the packet may be altered so that others do not have access to it, as Mr. Ruppe suggests may have happened here. In fulfilling the requirement, it is the public body's responsibility to make certain that the packet is complete. Public bodies may consider the following optional strategies, in addition to providing the one copy during the meeting: posting the information on their websites, providing multiple copies, or including a cover-sheet on the public packet listing its contents.</p> <p>The Commissioner is sensitive to the fact that members of the public living in certain non-metro townships encounter challenges when trying to access information from their local governments. Because those bodies are not "government entities" subject to the Data Practices Act (Minnesota Statutes, Chapter 13), the access provided for in the Open Meeting Law is vital to township citizens' participation in and oversight of their government bodies. The Commissioner strongly encourages all public bodies to develop ways to guarantee meaningful access to the information required by section 13D.01.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Nagle raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Commissioner cannot determine whether the Baldwin Planning Commission complied with Minnesota Statutes, section 13D.01, subdivision 6, at the May 21, 2014, meeting because there is a factual dispute as to whether the Commission included a draft of the comprehensive plan in the public members' materials.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: August 5, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2669292663462022-04-22T18:03:39Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266966" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-07-18T15:14:43ZAn educational entity asked whether it could designate limited directory information as described in the federal Family Educational Rights and Privacy Act’s (FERPA) regulations consistent with Chapter 13. Educational entities can designate limited directory information and the federal government affords greater privacy protection to limited directory information such that access could be restricted to specific parties, for specific purposes, or both. July 18, 2014; Minnesota State Colleges and Universities36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: In 2023, the legislature amended Minnesota Statutes section 13.32, subdivision 5, to limit what data may be designated as directory or limited directory information. This statutory change does not apply to post secondary institutions.</strong></p> <div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On June 4, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Kristine Legler Kaplan, Deputy General Counsel for Minnesota State Colleges and Universities (MnSCU). In her letter, Ms. Kaplan asked the Commissioner to issue an advisory opinion regarding the treatment of certain data that the entity maintains.</p> <p>Ms. Kaplan provided a summary of the facts as follows:</p> <p class="opinion_quote">On behalf of Minnesota State Colleges and Universities (MnSCU), I am writing to request an Advisory Opinion on a matter concerning the interplay between the Minnesota Government Data Practices Act (MGDPA) and the federal Family Educational Rights and Privacy Act (FERPA)... The regulations implementing FERPA have, in many respects, been incorporated into the MGDPA to avoid inconsistency between the state and federal laws. Among those incorporated regulations is 34 [Code of Federal Regulations] 99.31, which enumerates exceptions to the general rule [e.g. directory info] that student consent is required for a college or university to release personally identifiable student information to third parties. <br /> . . . . <br /> To provide schools with additional flexibility the Department of Education amended the FERPA regulations in 2011 to permit (but not require) educational institutions to designate certain directory information as "limited directory information" that it will disclose only to specified parties, for specified purposes or both. All directory information, regardless of whether it is so designated, is subject to the longstanding conditions described in 34 CFR 99.37(a) (annual notice to students of the school's FERPA policies and the right to "opt-out" of the disclosure of directory information.) We are requesting an Advisory Opinion as to whether MnSCU institutions can, consistent with the MGDPA, utilize the limited directory information designation, now authorized under FERPA.(Footnotes, emphasis, and citations omitted.)</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Kaplan's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the treatment of educational data that a government entity designates as "limited directory information" as described by 34 CFR 99.37(d)?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>As noted by Ms. Kaplan above, both Minnesota and federal law govern access to data about students. Minnesota Statutes, section 13.32, classifies educational data and incorporates much of the federal Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g, and its implementing regulations, 34 CFR Part 99. In general, data about students are private and may not be released without consent. (See section 13.32, subdivision 3.)</p> <p>However, section 13.32, subdivision 5, classifies data designated as directory information pursuant to 34 CFR 99.37(a), as public data. Directory information "means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." (See 34 CFR 99.3). Directory information may include a student's name, address, photograph, and participation in sports or activities, among other data elements. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267591" title="01-078" target="_blank">Advisory Opinions 01-078</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/268007" title="04-011" target="_blank">04-011</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267868" title="04-065" target="_blank">04-065</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267142" title="09-021" target="_blank">09-021</a>, which discuss directory information further.)</p> <p>The 2011 changes to the regulations implementing FERPA, described by Ms. Kaplan, allow for educational agencies and institutions to designate "limited directory information." 34 CFR 99.37(d) provides:</p> <p class="opinion_quote">In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.</p> <p>In her opinion request, Ms. Kaplan wrote:</p> <p class="opinion_quote">In part because of the MGDPA's "all-or-nothing" rule on public data, a number of MnSCU schools have adopted very limited definitions of directory data in order to protect their students from unwanted contacts, such as marketing campaigns, or even targeting for criminal acts. Such a policy creates administrative barriers and prevents colleges and universities from "disclosing" student information for educationally-related purposes without additional consent procedures. For example, a two-year college that does not list mailing addresses as directory information is limited in providing that contact information to MnSCU universities to assist in recruitment for four-year college degree programs; a university that does not include photos as directory information cannot create a graduation program with photos absent specific consent; and MnSCU schools must seek consent to provide student email addresses to other students or their affiliated foundations unless they are directory information also available to the general public. <br /> . . . . <br /> We believe that recognition of the limited directory information under the MGDPA would not be inconsistent with [section 13.32, subd. 5] since it does not change the list of information designated as directory information in the FERPA Regulations as of January 1, 2007, nor would it alter a student's rights to the notice and "opt-out" provisions that continue to be applicable to all directory data under 34 CFR 99.37.</p> <p>The Commissioner agrees that MnSCU, as well as other educational agencies and institutions, may designate limited directory information consistent with Chapter 13. However, with regard to access to such data, Chapter 13 is preempted by the FERPA regulations. (Where a state and a federal law conflict, the federal law governs. See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267487" title="04-068" target="_blank">Advisory Opinion 04-068</a>, discussing FERPA's preemption of the six month limitation on a data subject's access to data pursuant to Minnesota Statutes, section 13.04, subdivision 3.) Limited directory information is one of the few situations where the federal government has provided greater privacy protection for certain data than the State. Therefore, unlike general directory information, which is accessible to anyone, for any reason, educational agencies and institutions may restrict access to limited directory information to those specific parties and/or for those specific purposes identified in the annual FERPA notice. Consequently, entities that choose to designate limited directory information may have two sets of data: one that is general directory information and one that is limited directory information (pursuant to 34 CFR 99.37(d)).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Kaplan raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, a government entity may designate certain educational data as "limited directory information" as described by 34 CFR 99.37(d), and may release those data to specific parties, for specific purposes, or both, as identified by the entity in its public notice.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: July 18, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2669662669652023-08-18T19:56:24Z266258266293266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267005" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-07-11T15:14:43ZA School District planned to fill an open seat on its school board by appointment. The media asked for public data about the applicants under Minnesota Statutes, section 13.601. The District first responded that the data were private under Minnesota Statutes, section 13.43, but gave the data to the media six days after the application period ended, after the school board approved a resolution that it no longer considered board members to be employees. The District’s initial response was incorrect, but because the District was obligated to redact private applicant data per section 13.601, the District’s eventual response was prompt and reasonable.July 11, 2014; Independent School District 833 (South Washington County Schools)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On June 10, 2014, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Scott Wente, on behalf of the <em>South Washington County Bulletin</em> newspaper. In his letter, Mr. Wente asked the Commissioner to issue an advisory opinion about his right to gain access to certain data Independent School District 833, South Washington County Schools, maintains.</p> <p>In response to Mr. Wente's request, IPAD, on behalf of the Commissioner, wrote to Keith Jacobus, District Superintendent. The purposes of this letter, dated June 11, 2014, were to inform him of Mr. Wente's request and to ask him to provide information or support for the District's position. On June 26, 2014, IPAD received a response, dated same, from Michael J. Waldspurger, attorney for the District.</p> <p>A summary of the facts as Mr. Wente provided them follows. He wrote:</p> <p class="opinion_quote">District 833 planned to fill an open seat on its School Board by appointment following the resignation of a board member. The district established an application period of May 19-30, 2014.</p> <p class="opinion_quote">[On May 22, 2014], [t]he <em>Bulletin</em> requested verbally and in writing that District 833 provide public information about the applicants as their applications were received during the filing period, pursuant to Section 13.601, subd. 3, of the Minnesota Government Data Practices Act. [In his May 22, 2014, written request, Mr. Wente asked for the following data: "[a]ll public candidate applications/materials for the open seat on the South Washington County School Board."]</p> <p class="opinion_quote">District 833, through its attorney, verbally denied the request. In support of its position, it cited Minnesota Statute 13.43, sudb. [sic] 3; Minnesota Department of Administration Advisory Opinion 07-022; and District 833's policy of treating School Board members as district employees for the purposes of the Minnesota Data Practices Act. In effect, the District contended that because the board members were treated as employees by the District, section 13.43, subd. 3, governed access to information about the applicants, and not section 13.601, subd.3.</p> <p class="opinion_quote">District 833 did eventually provide public information about the School Board applicants to the Bulletin on June 5 - six days after the application period ended, and after the conclusion of a School Board meeting that included approval of a resolution changing the District's policy to treat board members as elected officials rather than employees. <br /> <br /> The Bulletin believes that Section 13.601, subd. 3, is the applicable statute governing public access to data on applicants for appointment to a school board, whether they are considered to be employees or elected officials. As such, it is the position of the Bulletin that District 833 did not properly comply with the newspaper's request for public information about applicants to the School Board as they submitted their applications.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Wente's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 833, South Washington County Schools, respond appropriately to requests for access to data about applicants for an open seat on the School Board?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, subdivision 1, defines "personnel data" as "government data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity." Pursuant to subdivision 3, certain data on applicants, including their names, are private until "selected to be interviewed by the appointing authority."</p> <p>Prior to a 2005 amendment, the definition of personnel data included data "on an individual who is a member of <em>or an applicant for</em> an advisory board or commission." That year, the Legislature removed those individuals from the definition of personnel data and enacted Minnesota Statutes, section 13.601, subdivision 3, which classified data on "all applicants for <em>election or appointment</em> to a public body, including those subject to chapter 13D" [Emphasis added.]</p> <p>In 2008, the Minnesota Legislature amended section 13.601, subdivision 3(a), as follows:</p> <p class="opinion_quote">Data about <em>applicants for appointment to a public body</em> collected by a government entity as a result of the applicant's application for appointment to the public body are private data on individuals except that the following [data described in sub-clauses 1-9, including applicant's name] are public [Emphasis added.]</p> <p>In his comments to the Commissioner, Mr. Waldspurger noted that the Commissioner has issued numerous advisory opinions that state that it is up to the government entity to determine whether an appointed or elected official is an employee for purposes of Chapter 13. He stated that the Board "had historically considered its members to be employees for purposes of section 13.43. .... At a duly scheduled meeting on Thursday, June 5, 2014, the School Board adopted a resolution declaring that members of the Board are not 'employees' for purposes of Chapter 13.</p> <p>Mr. Wente asked the Commissioner whether data on applicants for appointment to the School Board were classified by section 13.43, or section 13.601. The advisory opinions to which Mr. Waldspurger referred were issued prior to the 2008 amendments to section 13.601, and therefore are not applicable here. (Mr. Waldspurger also referenced a 2006 opinion of the Minnesota Attorney General. Again, because that opinion was issued prior to 2008, the Commissioner does not believe that it is applicable to this discussion.) <br /> <br /> Accordingly, data on <em>applicants for appointment</em> to a public body, such as the School Board, are classified under section 13.601, not section 13.43. The data enumerated at section 13.601, subdivision 3(a), were public when the District received the applications.</p> <p>As to the timeliness of the District's response, Mr. Wente stated that he asked the District to provide him with public data on School Board applicants as the Board received them. Mr. Waldspurger disputes that claim. However, in a May 23, 2014, email to Mr. Waldspurger, Mr. Wente wrote that he wanted to clarify that the data on applicants were, "public when they apply, based on statute 13.601. <em>I've already requested that the district provide public data in 13.601 as applications are received,</em> but I want to clarify that the district is on the same page as far as what is public and what is not public." [Emphasis added.]</p> <p>Mr. Waldspurger wrote in response to the Commissioner:</p> <p class="opinion_quote">The District received the first application on Thursday afternoon, May 29, 2014. The District received the remaining six applications shortly before the 4:00 p.m. deadline on Friday afternoon, May 30, 2014. Because the majority of applications were received shortly before the close of business on Friday, the District did not have an opportunity to review and process the application materials until Monday, June 2, 2014.</p> <p>As noted above, immediately following the June 5, 2014, School Board meeting (at which it passed a resolution that Board members are not employees), the District gave Mr. Wente copies of all of the data it maintained that were responsive to his request.</p> <p>The District was not correct that the data on applicants for the open seat on the School Board were classified as private under section 13.43; however, not all data on an applicant for appointment are public under section 13.601, subdivision 3. Therefore, the District was obligated to review the applications and redact as necessary before releasing public applicant data. The District received the first application on May 29, and provided Mr. Wente with copies of all of the data he requested on June 5, 2014. Under the circumstances, the Commissioner believes the District's response was prompt and reasonable.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Wente is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, Independent School District 833, South Washington County Schools, responded appropriately to requests for access to the data about applicants for an open seat on the School Board that are public under Minnesota Statutes, section 13.601, subdivision 3.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: July 11, 2014</p> <hr /> </td> </tr> </tbody> </table> </div>2670052670042022-01-18T19:20:55Z266258266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266366" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-06-18T15:14:43Z A member of the public asked whether a City had complied with Minnesota Statutes, section 13D.05, subd. 3(a), regarding a summary of the conclusions of an employee’s performance evaluation at the next open meeting. The City did not comply when it failed to provide a summary at the next open meeting and because the statement provided at a subsequent meeting was insufficient.June 18, 2014; Newport City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On April 30, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Pauline Schottmuller, dated April 27, 2014. In her letter, Ms. Schottmuller asked the Commissioner to issue an advisory opinion regarding the Newport City Council (the Council) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>On May 2, 2014, IPAD wrote to Mayor Tim Geraghty, Chair of the City Council. In its letter, IPAD informed Mayor Geraghty of Ms. Schottmuller's request and gave the members of the Council an opportunity to explain their position. On May 19, 2014, IPAD received a response, dated same, from Frederic Knaak, attorney for the Council.</p> <p>A summary of the facts as provided by Ms. Schottmuller follows:</p> <p class="opinion_quote">A closed meeting was held March 6, 2014 to conduct a performance evaluation of [the], city administrator. The Minnesota Open meeting law requires a summary of the conclusions of the evaluation at the next open city council meeting. That meeting, a regularly scheduled council meeting, occurred March 20th. No summary was presented. The South Washington County Bulletin published an article about the violation in the March 26th edition. On April 3rd, Mayor Geraghty references the newspaper article and the evaluation at the council meeting. I don't believe that his brief remarks constitute a summary of the conclusions of the evaluation.</p> <p>Ms. Schottmuller provided the Commissioner with copies of the meeting minutes of the three City Council meetings. The March 6, 2014, minutes provide: "The City Council closed the meeting to the public to discuss [the City Administrator's] performance evaluation at 8:05 p.m. The City Council opened the meeting to the public at 8:37 p.m." The April 3, 2014, minutes report the following comment from Mayor Geraghty:</p> <p class="opinion_quote">The other item I wanted to talk about which was put in the newspaper was [the City Administrator's] performance evaluation that was done at the March 6 workshop during a closed session. I wasn't at the actual workshop but I'll summarize what I think happened. We talked about [the City Administrator's] performance, her strengths and weaknesses. Overall, I think it was satisfactory. It wasn't mentioned at the last meeting because of an oversight.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Schottmuller's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Newport City Council comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the city administrator's performance evaluation it conducted at a closed meeting on March 6, 2014?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13D.05, subdivision 3 (a), [a] public body may close a meeting to evaluate the performance of an individual who is subject to its authority. . . . . At its next open meeting, the public body shall summarize its conclusions regarding the evaluation.</p> <p>The Commissioner has addressed this issue in several previous opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267635" title="99-018" target="_blank">Advisory Opinions 99-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266799" title="02-021" target="_blank">02-021</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267659" title="02-035" target="_blank">02-035</a>.) In those opinions, the Commissioner concluded that the following statements were insufficient to fulfill the public bodies' statutory obligations: "[the Board] discussed the superintendent's strengths and weaknesses"; "As a result of that review, strengths were noted and areas of improvement were defined. The board developed goals regarding communication and leadership"; and "areas of growth were identified and [the Superintendent's] evaluation is an ongoing process."</p> <p>Here, according to the video of the April 6, 2014 meeting, submitted by the Council, Mayor Geraghty said:</p> <p class="opinion_quote">The other item that I wanted to talk about that was put into the newspaper was our evaluation for [the City Administrator] that was conducted at our March 6, workshop, it wasn't at the Council meeting it was at the workshop. It was done in a closed session. And I wasn't at the actual workshop because I was out of town. But I'll summarize what I think what happened and you guys can affirm it. Basically we talked about [the City Administrator's] performance, her strengths, weaknesses, where she needs improvement. Overall, I think it was satisfactory. And it wasn't mentioned at the last meeting just because of an oversight. I guess nobody thought of it at the table here. With that, if anyone wants to clarify or add anything.</p> <p>Two Council members responded, "nope, that's about right" and "that's pretty close."</p> <p>Mr. Knaak wrote on behalf of the City:</p> <p class="opinion_quote">It is the City's position that no violation of the Open Meeting Law occurred <br /> <br /> The statute does not define its use of the term "summarize", or what "conclusions" must be reported. In this particular process, no formal "conclusions" of any kind were reached or were considered to be part of the review process undertaken by the City during a routine review where no specific performance issues were raised prior to the review. The statute would not appear to require the City create "conclusions" to summarize if none were part of the process the City was undertaking.</p> <p>The Commissioner respectfully disagrees. Firstly, Mr. Knaak is correct in that the Legislature did not define the word, "conclusions." Pursuant to Minnesota Statutes, section 645.08, words are construed "according to their common and approved usage." <em>Merriam Webster's Collegiate Dictionary</em>, Tenth Edition, Merriam-Webster, Incorporated, 1996, defines "conclusion" as: "a reasoned judgment." According to Mayor Geraghty's statement at the April 6, 2014, meeting, which was validated by other Council members, the Council discussed the City Administrator's strengths, weaknesses, and areas for improvement. In doing so, the Council necessarily must have made judgments that the City Administrator had, in fact, demonstrated strengths, weaknesses, and areas for improvement. If, however, the Council did not come to a conclusion on any of those items, that itself is a conclusion which the Council was required to summarize pursuant to section 13D.05, subdivision 3(a).</p> <p>Secondly, Mayor Geraghty clearly acknowledged that the Council's summary was not timely.</p> <p>Finally, the Commissioner reminds public bodies that regardless of terminology, "workshops," which a quorum of members attends, are also "meetings" for purposes of Chapter 13D. Whether public bodies consider "workshops" to be separate meetings can have an effect on the timing of the required summary. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267496" title="12-008" target="_blank">Advisory Opinion 12-008</a>.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Schottmuller raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Newport City Council did not comply with Minnesota Statutes, section 13D.05, subdivision 3(a), when it failed to provide a summary of conclusions of the city administrator's performance evaluation conducted at a closed meeting on March 6, 2014, at its next open meeting.</td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 18, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2663662663652022-04-25T18:24:46Z266258266262266293266272266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267728" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-06-05T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 15, 2014, request for data? Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 25, 2014, request for data pursuant to Minnesota Statutes, section 13.04, subdivision 3?June 5, 2014; Independent School District 625 (St. Paul)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On April 22, 2014, the Information Policy Analysis Division (IPAD) received a letter dated April 21, 2014, from Tim Finnegan. In his letter, Mr. Finnegan asked the Commissioner to issue an advisory opinion about his right to gain access to certain data Independent School District 625, St. Paul (the District), maintains, as well as his rights as a subject of data.</p> <p>IPAD, on behalf of the Commissioner, wrote to Superintendent Valeria Silva, data practices responsible authority, in response to Mr. Finnegan's request. The purposes of this letter, dated April 28, 2014, were to inform her of Mr. Finnegan's request and to ask her to provide information or support for the District's position. On May 12, 2014, IPAD received a response to Issue 1, dated same, from Jeffery Lalla, General Counsel to the District. On May 12, 2014, IPAD received a response to Issue 2, dated same, from Nancy Cameron, Deputy General Counsel for the District.</p> <p>Based on the materials Mr. Finnegan submitted to the Commissioner, a summary of the facts follows. On March 14, 2014, Mr. Finnegan sent an email data request to Superintendent Silva, in which he wrote:</p> <p class="opinion_quote">I seek access to the following: Any and all data that document ISD 625's public data collected, created, received, maintained or disseminated regarding, [an employee], once employed by ISD 625 and just recently resigned.</p> <p class="opinion_quote">I am requesting all data as defined in Minnesota Statutes 13.43 Personnel Data, Subd. 2, (2), (3), (4), (5), (6), (7), (b), [<em>sic</em>].</p> <p class="opinion_quote">I am also requesting any data that document all other persons or entities that have requested public data pertaining to [the employee] from February, 2014 through March 14, 2014.</p> <p>The District provided Mr. Finnegan access to some of the requested data. On April 3, 2014, Mr. Finnegan wrote to Ms. Silva, asking for the statutory basis for denying him access to two of three complaints against the former employee, as well as the data that document persons or entities requesting public data about him. On April 4, 2014, Mr. Lalla responded on behalf of the District stating that the data were classified as private data pursuant to Minnesota Statutes, section 13.43.</p> <p>On March 25, 2014, Mr. Finnegan submitted another data request to the District seeking access to data of which he is the data subject. He wrote: I seek access to the following: Any and all data that document ISD 625's data collected, created, received, maintained or disseminated regarding me, Tim Finnegan, an employee of ISD 625 .</p> <p>On April 4, 2014, Mr. Finnegan received a response from Laurin Cathey, Executive Director for Human Resources on behalf of the District. Mr. Cathey noted that Mr. Finnegan had previously requested and received access to data of which he was the data subject. He wrote:</p> <p class="opinion_quote">I am unclear as to what new or additional data you are asking to inspect. Please identify what new or additional data you would like to inspect, and the District will consider your request further.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Finnegan's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 15, 2014, request for data?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 25, 2014, request for data pursuant to Minnesota Statutes, section 13.04, subdivision 3?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong><em>Issue 1.</em></strong><em>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 15, 2014, request for data?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>Section 13.43, subdivision 2(a)(4) and (5) classify the following data about complaints against the employee and disciplinary actions as public:</p> <p class="opinion_quote">(4) the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action;</p> <p class="opinion_quote">(5) the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body[.]</p> <p>On March 15, 2014, Mr. Finnegan requested access to data regarding a certain former public employee. At issue here, are data related to complaints against the employee and data documenting any persons or entities that had requested public data about the same employee.</p> <p>In response to Mr. Finnegan, on April 4, 2014, Mr. Lalla wrote:</p> <p class="opinion_quote">Complaints (as contrasted with disciplinary actions) against employees are not public data under Minnesota Statutes Section 13.43. Rather, this section not the law only makes public "the existence and status of any complaints or charges against the employee." See Minnesota Statutes Section 13.43, subd. 2(a)(4). Yesterday you were advised that there were three complaints against [the former employee], one of which resulted in discipline. The status of the two complaints which did not result in discipline are "closed". You were provided with documentation pertaining to the one complaint which resulted in discipline.</p> <p>With regard to the complaint data, the Commissioner agrees that the District was not required to provide any more data regarding the two complaints that did not result in discipline. Mr. Finnegan was made aware of the existence of the complaints and Mr. Lalla informed him that the status of both complaints is "closed." Because no discipline resulted, the underlying data about the complaint are private and Mr. Finnegan, as a member of the public, was not entitled to access that data. (Mr. Finnegan did not challenge his access to the data regarding the third complaint.)</p> <p>Mr. Finnegan also requested access to "any data that document all other persons or entities" that requested public data about the employee. In his April 4, 2014 email, Mr. Lalla responded:</p> <p class="opinion_quote">Data dealing with data requests about an employee is not data declared to be public under Minnesota Statutes Section 13.43 or any other statute. Thus the School District is prohibited from providing you with data.</p> <p>The Commissioner respectfully disagrees. As the Commissioner has stated before, Chapter 13 generally classifies data elements, not documents. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267717" title="03-036" target="_blank">Advisory Opinions 03-036</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267558" title="05-033" target="_blank">05-033</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267001" title="12-006" target="_blank">12-006</a>.) Data related to individuals requesting public data is not data collected, created, or maintained because the individual is an employee of a government entity. Moreover, "an entity" requesting public data is not an "individual." Therefore, "data that document all other persons or entities" requesting public data cannot be private personnel data pursuant to section 13.43. Because Chapter 13 does not classify data related to public data requesters, those data are presumptively public. As such, the District should provide Mr. Finnegan with all public data responsive to his request, if any, in a prompt and reasonable manner.</p> <p>Additionally, Minnesota Statutes, section 13.03, subdivision 3(f) requires the responsible authority or designee to state the grounds upon which a requester is denied access to data by citing to the specific statute, federal law, or temporary classification. Here, Mr. Lalla ultimately provided Mr. Finnegan with a determination, but not until after Mr. Finnegan had inspected the data and subsequently requested the basis for the denial. The Commissioner reminds entities that section 13.03 requires the responsible authority or designee to inform the requester of the not public classification, "either orally at the time of the request, or in writing as soon after that time as possible." The requester should not need to inquire about the determination.</p> <p><strong><em>Issue 2.</em></strong><em>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a March 25, 2014, request for data pursuant to Minnesota Statutes, section 13.04, subdivision 3?</em></p> <p>Pursuant to section 13.04, subdivision 3, when a government entity receives a data request from a data subject:</p> <p class="opinion_quote">The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.</p> <p>Section 13.04, subdivision 3, also provides that an entity is not required to allow a data subject access to private data, if the data subject has accessed the same data within the last six months.</p> <p>On March 25, 2014, Mr. Finnegan requested: "Any and all data that document ISD 625's data collected, created, received, maintained or disseminated regarding me, Tim Finnegan, an employee of ISD 625." Eight days later on April 4, 2014, Mr. Cathey, on behalf of the District replied, "I am unclear as to what new or additional data you are asking to inspect."</p> <p>In her response to the Commissioner on behalf of the District, Ms. Cameron wrote:</p> <p class="opinion_quote">Prior to [the March 25, 2014] request, Finnegan had also made a number of requests for public and private data on himself. The District answered all of those requests. Finnegan inspected data about himself and received copies of the requested data.</p> <p class="opinion_quote">Against this backdrop [Mr. Cathey] responded to Mr. Finnegan. On April 4, 2014, Mr. Cathey wrote to Finnegan seeking clarification of the March 25, 2014 data request. <br /> <br /> Although Mr. Cathey sought clarification, to date Finnegan has not clarified what specific data he would like to inspect.</p> <p class="opinion_quote">The District does not know what data Mr. Finnegan would like to inspect(Exhibit references omitted.)</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267823" title="01-016" target="_blank">Advisory Opinion 01-016</a>, which also involved ISD 625, a parent requested access to a complete record of his/her child's education data. There, the District argued, in part, that its delay in providing the requester with the data was due to a need to clarify and its attempts to call the requester. The Commissioner wrote:</p> <p class="opinion_quote">First, X's request seems quite clear; s/he wanted a copy of everything the District maintained about his/her children. Second, X specifically asked to have communications conducted in writing. It is not clear why the District did not send X a letter. <br /> <br /> As stated above, section 13.04, subdivision 3, requires that government entities respond [i.e., provide access to the data by inspection or copies] to data subject requests within ten working days. The statute does not allow for exceptions.</p> <p>The situation is the same here: Ms. Cameron argued that because Mr. Finnegan had asked for data about himself in years past, the District was unsure as to what his March 25, 2014, request meant and required clarification. However, Mr. Finnegan clearly requested all data that the District maintains about him. The plain language of section 13.04, subdivision 3, required the District to provide access to the data immediately, if possible, or within 10 days. (The six month limitation on access to private data noted above is not relevant here; Mr. Finnegan and the District agree that Mr. Finnegan's last request for private data was in December 2012.) While the Commissioner finds Mr. Finnegan's request to be straightforward here, when a data subject's request is vague or ambiguous, entities may need to seek clarification. In doing so, they must act in a timely manner that does not interfere with their obligations under section 13.04. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267853" title="03-026" target="_blank">Advisory Opinion 03-026</a>.)</p> <p>Finally, while the Commissioner acknowledges the District's efforts to communicate with Mr. Finnegan, Mr. Cathey's April 4, 2014, response impermissibly limited Mr. Finnegan's right to access data about himself to "new or additional data." As noted above, entities may only limit a data subject's access to private data within six months and in certain circumstances. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267240" title="95-051" target="_blank">Advisory Opinions 95-051</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267363" title="98-038" target="_blank">98-038</a>.)</p> <p>Because the District failed to provide Mr. Finnegan access to the data he requested within 10 days, it did not respond appropriately.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues raised by Mr. Finnegan is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Independent School District 625, St. Paul, responded appropriately to a March 15, 2014, request for complaint data about a former employee. The District did not respond appropriately to a request for data relating to persons or entities requesting public data about a former employee; those data are presumptively public.</li> <li>Independent School District 625, St. Paul, did not respond appropriately to a March 25, 2014, request for "any and all data" about a data requester, pursuant to Minnesota Statutes, section 13.04, subdivision 3, because it did not comply in a timely manner.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 5, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2677282665152665162662752022-01-18T19:20:55Z266258266284266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267821" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-06-02T15:14:43ZDid the Houston County Board of Commissioners comply with Minnesota Statutes, Chapter 13D, at its April 8, 2014, meeting?June 2, 2014; Houston County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On April 15, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Ken Tschumper, dated April 14, 2014. In his letter, Mr. Tschumper asked the Commissioner to issue an advisory opinion regarding the Houston County Board of Commissioners members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>On April 23, 2014, IPAD wrote to Teresa Walter, Chair of the Board. In its letter, IPAD informed Ms. Walter of Mr. Tschumper's request and gave the members of the Board an opportunity to explain their position. On May 8, 2014, IPAD received a response, dated same, from Jay T. Squires, attorney for the Board.</p> <p>A summary of the facts as provided by Mr. Tschumper follows:</p> <p class="opinion_quote">For several years the Houston County Board has dealt with matters relating to the Erickson Quarry, proposed silica sand mine located in Yucatan Township, Houston County. It is also currently considering various options for amending the County Zoning Ordinance to prohibit or regulate silica sand mining.</p> <p class="opinion_quote">On Tuesday, April 8th, 2014, the Board, at the suggestion of their attorney Jay Squires, closed their weekly meeting for the stated purpose of general discussion of ongoing matters related to the Erickson Quarry. In addition, it appears the closed meeting also included discussion related to amending the Zoning Ordinance.</p> <p>According to Mr. Tschumper, Mr. Squires participated in the April 8 meeting via speaker phone. Mr. Tschumper provided a transcript of the recording of the meeting. Mr. Squires' comments to the Board follow:</p> <p class="opinion_quote"><strong>As I understand, there are a couple issues that the board wishes to talk about today. One involves specifically the Erickson property and the status of that property with respect to the history of events and Mr. Erickson's request to recommence mining.</strong></p> <p class="opinion_quote">The second issue I understand involves the county's consideration of discussion of potential future ordinances in the area of silica sand mining.</p> <p class="opinion_quote">I think the issues are separate, and with respect to the former, there have been a number of threats of litigation, and, of course there is a history of past litigation. I would like to be able to talk to the county board candidly about the strengths and weaknesses of the various positions that the county may have in response to Mr. Erickson's pending request and in light of the threats of litigation and in light of that, that would be a proper topic of a closed meeting.</p> <p class="opinion_quote">In discussing the second topic, in discussing future ordinances, that would not, in my judgement, be a proper topic of a closed meeting, so what I recommend to the board, [y]ou could convene into closed session on the basis of the attorney client privilege exception in the open meeting law for the reason that's discussed. There would be no discussion of the ordinance options of a more general nature which would be in closed session, we would reopen and then if the board wishes [to discuss] that second topic</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Tschumper's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Houston County Board of Commissioners comply with Minnesota Statutes, Chapter 13D, at its April 8, 2014, meeting?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13D.01, subdivision 3, states, "[b]efore closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed."</p> <p>The Commissioner has addressed the three requirements to close a meeting in previous opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267613" title="06-012" target="_blank">Advisory Opinions 06-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">06-020</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267617" title="07-018" target="_blank">07-018</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266988" title="13-012" target="_blank">13-012</a>.) In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>, the Commissioner described those requirements as: "1) a statement on the record; 2) the specific grounds allowing the meeting to be closed (the statutory authority); and 3) a description of the subject to be discussed (the description must go beyond simply identifying the subject)."</p> <p>Mr. Tschumper asked whether the Board violated the Open Meeting Law by "failing to meet the specific legal requirements for closing the meeting, namely did they cite the specific statutory section that permits them to close the meeting, or identify the statutory authority to permit closing the meeting?"</p> <p>In his comments to the Commissioner, Mr. Squires wrote:</p> <p class="opinion_quote">Mr. Tschumper asserts in his April 14, 2014, letter, incorrectly, that the County did not comply with the [section 13D.01, subdivision 3], requirement because the County did not " ... identify any specific statutory authority ...." Mr. Tschumper's letter references <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">IPAD Opinion 06-020</a>, seemingly relying on this opinion for his position.</p> <p class="opinion_quote">IPAD did not, as Mr. Tschumper would seem to imply, opine that citation to a statute subdivision or subpart was necessary to state the "specific grounds" for closure. Rather, the opinion only suggests that citation to the particular subdivision or subpart is an "efficient way" to state the specific grounds. In fact, the statute itself does not require the statement of a statutory citation.</p> <p>Mr. Squires is correct, the plain language of the OML does not require a public body to cite the specific statute upon which it relies to close a meeting. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">06-020</a>, the Commissioner suggested that doing so is the simplest way for a public body to fulfill its obligation to inform the public of its grounds for closing a meeting, i.e., here, the Board could have cited section 13D.05, subdivision 3(b). Instead, Mr. Squires advised the Board it <em>could</em> do so based on the attorney-client privilege. The Commissioner still recommends that public bodies cite the specific provision of the OML (or other law) that permits closing a meeting, in order to avoid this kind of misunderstanding.</p> <p>Mr. Tschumper also asserted that the Board violated the Open Meeting Law because it did not "specifically state what exactly will be discussed" in closed session. He cited a Minnesota appellate court case, <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471 (Minn. Ct. App. 2004) in support of his position.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267497" title="06-020" target="_blank">06-020</a>, the Commissioner discussed the Court's holding:</p> <p class="opinion_quote">The final element to be considered is whether the notice that the Board has used <br /> "describes the subject to be discussed." The Court of Appeals has provided direction on how this language is to be interpreted. In <em>The Free Press</em>, the Court was asked to decide if a statement that a meeting is "being closed for a discussion of pending litigation under the attorney-client privilege" met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that "attorney client privilege" provided the grounds and "pending litigation" <em>identified</em> the subject to be discussed, but did not <em>describe</em> the subject as required by the statute. <em>The Free Press</em> at 476 (emphasis in the original).</p> <p>Accordingly, before closing a meeting, a public body must describe both the specific grounds permitting the meeting to be closed and the subject to be discussed.</p> <p>In his comments, Mr. Squires wrote:</p> <p class="opinion_quote">Again, a simple reading of the transcript excerpt of the pre-closure discussion refutes Mr. Tschumper's assertions. In particular, the transcript indicates legal counsel, referencing the Erickson property, litigation, and the pending request to recommence mining, stated:</p> <p class="opinionquoteinquote">... I would like to be able to talk to the County Board candidly about the strengths and weaknesses of the various positions the County may have in response to Mr. Erickson's pending request and in light of the threats of litigation ....</p> <p class="opinion_quote">Contrary to Mr. Tschumper's unsupported assertion, the above statement clearly identifies the "subject to be discussed" in closed session.</p> <p>Applying the holding from <em>The Free Press</em> to these facts, The Commissioner believes that Mr. Squires "described the subject to be discussed" with the specificity required by the Court. In support of that conclusion, Mr. Squires referred specifically to the legal issues involving the Erickson property, including and "the status of that property with respect to the history of events and Mr. Erickson's request to recommence mining."</p> <p>However, having said that the Board's <em>attorney</em> adequately described the grounds permitting the meeting to be closed and described the subject to be discussed, section 13D.05, subdivision 3, requires <em>the public body to make a statement on the record</em> before closing a meeting.</p> <p>In his comments to the Commissioner, Mr. Squires repeated what he told the Board at the meeting: "[y]ou <em>could</em> convene into closed session on the basis of the attorney client privilege exception in the open meeting law for the reason that's discussed." The Board then voted directly to go into closed session; no Board member made the required statement on the record. After they voted yes, Mr. Squires said "on the basis as discussed."</p> <p>The Board, not its attorney, has the authority to close a meeting, and it is the Commissioner's opinion that the Board's reliance on its attorney's statements did not meet the strict statutory requirement. The Board simply needed to state its clear intention to close the meeting for the reasons Mr. Squires advised, i.e., on the basis of the attorney-client privilege, to discuss the Erickson property, etc., as noted above.</p> <p>Finally, Mr. Tschumper stated his belief that the Board violated the OML "by discussing a matter not described or proposed for discussion in the closed meeting." He wrote that "there is evidence" that the Board discussed the proposed silica sand mining ordinances during the closed portion of the April 8 meeting. According to Mr. Tschumper:</p> <p class="opinion_quote">Immediately after reconvening in open session a motion was made and passed releasing to the public a communication between [Mr.] Squires and [County staff] relating to ordinance development. There was no discussion of taking this action prior to the meeting being closed. There was no announcement that this matter was to be discussed in closed session or why. But from the video the conclusion is that some kind of discussion on this matter took place during the time the meeting was closed to when it was reopened.</p> <p>According to the transcript, when the Board reconvened the meeting in open session, it announced a decision made in closed session, and then a Board member stated:</p> <p class="opinion_quote">We had Mr. Squires look at some information for us as far as whether a ban would be possible. We did get a document back from him, and I would make a motion that that [sic] we waive attorney client privilege on that particular document and make it public.</p> <p>Mr. Tschumper believes that statement is evidence that the Board discussed the proposed ordinance amendments during closed session. According to the transcript, Mr. Squires did not propose to the Board that it could discuss whether or not to waive the privilege regarding that document in closed session.</p> <p>In his comments to the Commissioner, Mr. Squires stated:</p> <p class="opinion_quote">Mr. Tschumper's last stated issue asserts the County discussed matters not related to the Erickson property and litigation, namely, the adoption of a regulatory ban on silica sand mining. However, Mr. Tschumper offers no factual evidence in support of such a claim. Rather, he suggests the Board must have had substantive discussion on this topic because, after reconvening in open session, the Board voted to release a privileged opinion letter from legal counsel on banning silica sand mining.</p> <p class="opinion_quote">The Board did not, in fact, engage in substantive discussions that Mr. Tschumper baldly asserts occurred. Here, the transcript excerpt includes a discussion with the Board that the silica sand mining ban topic would not and could not be discussed in the closed session. Why would the Board then close the meeting and discuss the very matters they had just been told would and could not be discussed?</p> <p class="opinion_quote">In short, IPAD has been provided with no facts by Mr. Tschumper that the subject of a silica sand mining ban was discussed in closed session. Consequently, IPAD cannot conclude or determine a violation of the Open Meeting Law occurred.</p> <p>The statement the Board member made is ambiguous, and the Commissioner believes Mr. Tschumper's interpretation is reasonable. Mr. Squires states that the Board did not engage in "substantive" discussion of matters not covered by the attorney-client privilege. He does not specifically deny that the Board had <em>any</em> discussion about waiving the privilege regarding the document in question. Pursuant to section 13D.05, subdivision 1(c), the Board was not required to electronically record the closed session per the privilege. Thus, there is no record of the closed meeting, and the Commissioner therefore cannot determine whether the Board improperly discussed waiving the privilege in order to release the document.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Tschumper raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Houston County Board of Commissioners did not comply with Minnesota Statutes, Chapter 13D, at its April 8, 2014, meeting, because the Board did not make a statement on the record before closing the meeting, as required by Minnesota Statutes, section 13D.01, subdivision 3.Had the Board made the statements the attorney did, i.e., providing the grounds and describing the subject it would discuss, the Board would have complied with Chapter 13D.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 2, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2678212662852662882022-04-19T16:08:53Z266258266293266282266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267354" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-05-12T15:14:43ZDid the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, at the February 11, 2014, closed meeting? Did the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, when it closed the February 26, 2014, meeting pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b)?May 12, 2014; City of Cold Spring36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On March 19, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Mark Anfinson on behalf of the St. Cloud Times (the Times), dated same. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the Cold Spring City Council members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>On March 27, 2014, IPAD wrote to Mayor Doug Schmitz, Chair of the public body. In its letter, IPAD informed Mr. Schmitz of Mr. Anfinson's request and gave the members of the City Council an opportunity to explain their position. On April 14, 2014, IPAD received a response, dated same, from Susan Kadlec, attorney for the City.</p> <p>A summary of the facts as provided by Mr. Anfinson follows. In the course of hiring a new police chief, the City of Cold Spring considered the application of Eric Johnson. The City interviewed Mr. Johnson and subsequently extended him an offer of employment, provided he pass several examinations. On February 10, 2014, the City Administrator, Paul Hetland, emailed Mr. Johnson and told him that he had passed his examinations and that he could resign his current position so as to take up the position in Cold Spring.</p> <p>Mr. Anfinson wrote:</p> <p class="opinion_quote"><em>However, on February 11the City Council held a regular council meeting. The last item on the agenda for this meeting was a closed session to discuss the potential sale of a parcel of property in the city's business park (a copy of the agenda is enclosed). The Council cited Minn. Stat. section13D.05, subd. 3(c) as the basis for closing the meeting. No other grounds for closing the meeting were stated, yet it appears that the Council also discussed issues relating to Mr. Johnson in this closed meeting.</em></p> <p class="opinion_quote"><em>...As we understand it, the Council never resumed a public meeting after discussing the possible land sale in closed session, but instead moved directly to a discussion concerning the allegations against Johnson in the same closed meeting.</em></p> <p class="opinion_quote"><em>The minutes of the February 11 closed meeting also state that during the meeting, a "no-confidence" motion was made relating to Johnson, and that the motion was adopted on a 3-0 vote....</em></p> <p class="opinion_quote"><em>On February 26, the City Council held another regular meeting. The agenda included an item described as "Closed Session Regarding the Contract for Chief of Police".</em></p> <p class="opinion_quote"><em>...When pressed for the specific statutory basis for closing its meeting on February 26, the Council responded by citing Minn. Stat. section13D.05, subd. 2(b), claiming that it needed to review the allegations against Johnson, and that he was "an individual subject to its authority" within the meaning of this Open Meeting Law exception.</em></p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, at the February 11, 2014, closed meeting?</li> <li>Did the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, when it closed the February 26, 2014, meeting pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b)?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong><em>Issue 1.</em></strong> <em>Did the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, at the February 11, 2014, closed meeting?</em></p> <p>Minnesota Statutes, section 13D.01, subdivision 3 states:</p> <p class="opinion_quote"><em>Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.</em></p> <p>This subdivision requires that a public body do three things before a meeting is closed: (1) make a statement on the record; (2) give the specific grounds permitting the closure of the meeting; and (3) describe the subject to be discussed.</p> <p>Minnesota Statutes, section 13D.05, subdivision 2(b) states:</p> <p class="opinion_quote"><em>A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open....</em></p> <p>On behalf of the Council, Ms. Kadlec, wrote:</p> <p class="opinion_quote"><em>For the purpose of this response, the City does not contest that no express statement was provided to the public prior to closing the meeting on February 11, 2014, to indicate that Mr. Johnson would be discussed during the closed session. It is the City's position, however, that both the February 11, 2014, and February 26, 2014, were properly closed under Minn. Stat. section13D.05, Subd. 2(b), for preliminary discussion of allegations against Mr. Johnson.</em></p> <p>The salient question, then, is whether Mr. Johnson is, "an individual subject to [the City Council's] authority." Ms. Kadlec argued that he is:</p> <p class="opinion_quote"><em>The City Council can determine whether the conclusions of the investigation will have an impact on Mr. Johnson's commencement and/or continuation of employment with the City of Cold Spring....</em></p> <p><em>...</em></p> <p><em>[Section 13D.05, subdivision 2(b)] should be considered in conjunction with the treatment of personnel data under the Data Practices Act [Minnesota Statutes, Chapter 13]. Under Minn. Stat. section 13.43, subd. 4, the allegations considered by the City Council are private data - as to an applicant, the allegations remain private data in perpetuity.</em></p> <p>The Commissioner respectfully disagrees. Firstly, while there is certainly interplay between the Data Practices Act (Chapter 13) and the Open Meeting Law (Chapter 13D), the classification of data as not public pursuant to Chapter 13 does not necessarily require or permit the closing of meetings under Chapter 13D. Indeed, section 13D.05, subdivision 1, specifically allows public bodies to discuss not public data in open meetings when the data relate to a matter within the scope of the body's authority and is reasonably necessary to conduct business. Additionally, the plain language of subdivision 2(a) requires meetings to be closed based on the "types of data" to be discussed and refers to specific provisions in Chapter 13. (Subdivision 2(a) cites Minnesota Statutes, sections 13.82, 13.32, 13.3805, 13.384, and 13.46.) By contrast, subdivision 2(b) does not refer to "data" and does not contain a reference to section 13.43 (personnel data). As the Commissioner has previously stated, Chapter 13D does not contain a general exception that would allow meetings to be closed to discuss general personnel matters.</p> <p>Secondly, the Legislature did not define the phrase, "an individual subject to its authority." Under Minnesota Statutes, section 645.08, words and phrases are construed according to rules of grammar and according to their common and approved usage. Merriam Webster's Collegiate Dictionary, Tenth Edition, defines "subject" as "owing obedience or allegiance to the power or dominion of another." The second sentence of section 13D.05, subdivision 2(b) provides additional context. That sentence states that if a public body decides to impose discipline on the individual, the subsequent meetings must be open. Thus, a public body's ability to impose discipline and an individual's obligation to submit to the authority of the body are what make an individual subject to that authority.</p> <p>Here, Mr. Johnson has been extended a conditional offer of employment. The City considers him an applicant; he is not currently an employee. As such, the City has no authority to discipline Mr. Johnson or indeed, to direct his actions in any way. Mr. Johnson has the ability to decline the position and act irrespective of the City's authority. It is the Commissioner's opinion that the ability to hire is insufficient to subject an individual to the City's authority, for purposes of section 13D.05, subdivision 2(b).</p> <p>Because the Cold Spring City Council did not have authority to close the meeting for a discussion regarding the Mr. Johnson, the City's lack of statement on the record at the February 11, 2014, meeting is irrelevant.</p> <p>An additional concern raised by the <em>Times</em> is the Council's no-confidence vote at the February 11, 2014, meeting. Mr. Anfinson's letter to the Commissioner states: "[t]he minutes of the February 11 closed meeting also state that during the meeting, a "no-confidence" motion was made relating to Johnson, and that the motion was adopted."</p> <p>Ms. Kadlec, in her response to the Commissioner wrote:</p> <p><em>As shown in the minutes for the February 11, 2014, meeting,</em> following the closed session<em>, the Council adopted a "vote of no confidence for Eric Johnson to be appointed as Chief" and the meeting was thereafter adjourned." (Emphasis added.)</em></p> <p>The meeting minutes reflect a two minute recess prior to closing the meeting for consideration of the sale of land to "resituate" for the closed session. The next entry is, "Closed session: consideration of the sale of land in the Cold Spring Business Park." The following item is, "Police Chief contract negotiation," and the accompanying description notes a motion for a no confidence vote. There is an inconsistency between Mr. Anfinson's account and Ms. Kadlec's account; it is not clear whether the vote occurred in closed session or in open session and the meeting minutes do not provide clarification. The Commissioner cannot resolve factual disputes. To the extent that the Council conducted the no confidence vote in closed session, it did not comply with Chapter 13D. (See <em>Mankato Free Press v. City of Mankato</em>, 563 N.W.2d 291 (Minn. App. 1997), holding that a City should not hold secret votes, even if the results are made public at a later date and time.) If on the other hand, the members voted in open session, the vote itself did not violate Chapter 13D.</p> <p>The Commissioner notes, however, that given the potential effect on future meetings or issues that may come before the Council, the Council should be able to demonstrate when a meeting is open and when it is closed. For instance, on the basis of the minutes as submitted to the Commissioner, it is not clear whether the Council adjourned the February 11, 2014, meeting in open or closed session. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267496" title="12-008" target="_blank">Advisory Opinion 12-008</a>.)</p> <p><strong><em>Issue 2.</em></strong> <em>Did the Cold Spring City Council comply with Minnesota Statutes, Chapter 13D, when it closed the February 26, 2014, meeting pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b)?</em></p> <p>The City did not have authority to close the meeting pursuant to section 13D.05, subdivision 2(b), because the individual discussed was not subject to the City Council's authority.</p> <p>See issue 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Anfinson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Cold Spring City Council did not comply with Minnesota Statutes, Chapter 13D, when it closed the February 11, 2014, because it lacked statutory authority; the individual discussed was not subject to the City Council's authority and votes must be conducted in open session.</li> <li>The Cold Spring City Council did not comply with Minnesota Statutes, Chapter 13D, when it closed the February 26, 2014, meeting pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b), because the individual discussed was not subject to the City Council's authority.</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 12, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2673542667162667172665452022-01-18T19:20:53Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266899" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-04-23T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, did the University of Minnesota respond appropriately to a request for data related to Institutional Review Boards, specifically: studies, reports, meeting minutes and correspondence?April 23, 2014; University of Minnesota36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On March 5, 2014, the Information Policy Analysis Division (IPAD) received a letter dated same, from Carl Elliott. In his letter, Mr. Elliott asked the Commissioner to issue an advisory opinion about his right to gain access to certain data that the University of Minnesota (the University) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Susan McKinney, data practices responsible authority for the University, in response to Mr. Elliott's request. The purposes of this letter, dated March 17, 2014, were to inform her of Mr. Elliott's request and to ask her to provide information or support for the University's position. On April 2, 2014, IPAD received a response, dated same, from Tracy Smith, attorney for the University.</p> <p>A summary of the facts as Mr. Elliott provided them follows. In his opinion request to the Commissioner, he wrote:</p> <p class="opinion_quote">In [my October 20, 2013 data] request, I asked for the minutes of any IRB [Institutional Review Board] meeting in which Serious Adverse Events were discussed for studies conducted by [four psychiatrists]I also asked for any correspondence regarding Continuing Review of these studies, and the minutes of any IRB Executive Committee meeting in which these Serious Adverse Events in these studies were discussed.</p> <p>On October 28, 2013, Mr. Elliott followed his October 20, 2013, request with a request for: "the Form 1572, all Adverse Event reports and any other correspondence from the [CLEARS study]."</p> <p>Mr. Elliott continued:</p> <p class="opinion_quote">Despite a number of email reminders, I did not receive an answer to this request for four weeks. On November 21, I was told that in order to get this information I would need to send a check for a total of approximately $9,419, not including photocopying costs.</p> <p class="opinion_quote">n December 1, I asked [to inspect the data], and on December 12, I narrowed my request considerably in order to speed things up. After several more reminders, I was finally allowed to inspect the records for a single study on January 8, 2014.</p> <p class="opinion_quote">On January 11, I asked again about a visual inspection of the Serious Adverse Event Reports for a particular study: the so-called CLEARS study, which was conducted by AstraZeneca. On January 14, I was notified that AstraZeneca had marked the study as "proprietary" and that the company was being contacted for permission. It has been seven weeks since then, and I have still not gotten a reply.</p> <p class="opinion_quote">In the meantime, I have repeatedly asked when I will be allowed to see the Serious Adverse Event reports and/or Continuing Review reports for the other studies conducted by [the two psychiatrists], but I have still not been allowed to see them, or even received a response.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Elliott's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the University of Minnesota respond appropriately to a request for data related to Institutional Review Boards, specifically: studies, reports, meeting minutes and correspondence?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>As a preliminary matter, the Commissioner wishes to note that Mr. Elliott has made a number of data requests to the University throughout the past year, which are documented in the University's response to the Commissioner's letter. While the other requests provide relevant context to the University's response, this opinion focuses on the University's response to the October 20, 2013, request and the follow-up request on October 28, 2013, referenced in Mr. Elliott's letter to the Commissioner.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 2(a), when a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See also, Minnesota Rules, part 1205.0300.) Although the Legislature did not define reasonable time, the Commissioner has stated in previous opinions that it is relative to the nature or complexity of the request and amount of data requested. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267656" title="98-040" target="_blank">Advisory Opinions 98-040</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/266715" title="02-020" target="_blank">02-020</a>.)</p> <p>Further, previously issued advisory opinions have established that, when responding to data requests, government entities should respond in one of three ways: (1) provide the data; (2) advise that the data are classified such as to deny the requesting person access; or (3) inform the requestor that the data do not exist.</p> <p>Section 13.03, subdivision 3(f), provides:</p> <p class="opinion_quote">If the responsible authority or designee determines that the requested data is classified so as to deny the requesting person access, the responsible authority or designee shall inform the requesting person of the determination either orally at the time of the request, or in writing as soon after that time as possible, and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based.</p> <p>Mr. Elliott made his request on October 20, 2013. He made the follow-up request for data about the CLEARS study on October 28, 2013. Despite Mr. Elliott's assertion that the University did not respond to those requests for four weeks, the University provided the Commissioner with an email dated October 28, 2013, in which Ms. McKinney wrote, "I have received all of your requests. We are working on gathering the information you requested." On November 21, 2013, Ms. McKinney wrote to Mr. Elliott and provided him with an estimate for the copies he requested, which included the requests dated October 20, 2013, and October 28, 2013, and a recap of his remaining unresolved data requests. On December 1, 2013, Mr. Elliott responded to that email and changed his request to inspection instead of copies. Mr. Elliott and Ms. McKinney continued to correspond about other data requests and on December 12, 2013, Ms. McKinney provided Mr. Elliott with a list of 83 studies that contained data responsive to his request and offered him the opportunity to choose which studies he wanted to review first. Mr. Elliott and Ms. McKinney continued to be in contact with one another for the remainder of the month on these and other requests.</p> <p>On January 22, 2014, in reply to an email from Ms. McKinney, Mr. Elliott further refined his request and identified his priorities with regard to inspecting the data. Two days after Mr. Elliot requested this opinion, on March 7, 2014, Ms. McKinney notified Mr. Elliott that the University had hired an individual to assist in fulfilling his October data requests.</p> <p>On behalf of the University, Ms. Smith, wrote:</p> <p class="opinion_quote">It is important to understand the complexity of identifying and locating the records Prof. Elliott requested. Neither serious adverse event reports nor continuing review correspondence are kept together in some central University file organized according to serious adverse events reports or continuing reviews, nor are such documents organized or maintained according to researcher. Rather, the records are organized and maintained according to the IRB protocol for the applicable research project.</p> <p>Ms. Smith went on to explain the involved process necessary to identify and prepare the relevant data, which include studies for a period of nearly 20 years. She wrote, "[e]ven to find that no records exist in a file requires a careful review of a file."</p> <p>Based on the complexity of the request and the fact that the University has been in continual communication with Mr. Elliot, it is the Commissioner's opinion that the University has acted appropriately in responding to Mr. Elliott's October 20, 2013, request. It seems reasonable that the request might warrant the time that has elapsed, especially in the context of Mr. Elliott's various other requests. In her April 2, 2014, letter to the Commissioner, Ms. Smith wrote, "[r]eview of the documents will be completed by next week (the week of April 7), and any public records produced to Prof. Elliott by the end of that week." If the University has not already done so, the Commissioner encourages it to provide Mr. Elliott with the data as soon as practicable.</p> <p>With regard to Mr. Elliott's October 28, 2013, request for data associated with the CLEARS study, Ms. McKinney wrote in a January 14, 2014, email:</p> <p class="opinion_quote">The information from the CLEARS study will not be available for you to review this week. The study sponsor, Astrazeneca, has marked the information as proprietary. I am contacting them about your data request and will be back in touch with you as soon as I have more information to share.</p> <p>In a follow-up letter dated April 22, 2014, Ms. Smith wrote, "since my last response, we have been able to get confirmation from AstraZeneca that it does not assert that the SAEs constitute trade secret information." She went on to state that the University will provide Mr. Elliott with the reports related to the CLEARS study within the week.</p> <p>The Commissioner wishes to note that section 13.03, subdivision 3(f), requires an entity to inform a data requester, either orally at the time of the request or in writing shortly thereafter, if the data are classified as not public. Here, the University received Mr. Elliott's request for access to the CLEARS study on October 28, 2013, but did not state that the data were potentially classified as nonpublic until January 14, 2014, and at that time, Ms. McKinney did not assert that the data were classified pursuant to Minnesota Statutes, section 13.37 (trade secret). While the University should have informed Mr. Elliott of the CLEARS study's classification in a timelier manner, given the lengthy, on-going correspondence between the parties, the Commissioner believes that University acted in good faith.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Elliott is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the University of Minnesota responded appropriately to a request for data related to Institutional Review Boards, specifically: studies, reports, meeting minutes and correspondence.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 23, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2668992663992022-01-18T19:20:53Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267615" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-04-15T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an arbitration decision that sustains a grievance and reverses all aspects of any disciplinary action against a public employee?April 15, 2014; Bureau of Mediation Services36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 3, 2014, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Josh Tilsen, Commissioner of the Bureau of Mediation Services (Bureau). In his letter, Mr. Tilsen asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the Bureau maintains. IPAD requested additional information, which Mr. Tilsen provided on March 7, 2014.</p> <p>Mr. Tilsen provided a summary of the facts as follows. The Bureau has a statutory duty, under Minnesota Statutes, section 179A.04, subdivision 3(a)(7), to "receive, catalogue, file, and make available to the public all decisions of arbitrators Mr. Tilsen asked about the interaction of that provision and the relevant provision in Minnesota Statutes, section 13.43, subdivision 2(b), which states, "[a] disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action."</p> <p>Mr. Tilsen also wrote:</p> <p class="opinion_quote">As background, please be aware that publication of arbitration awards serves important purposes. First publication of awards provides transparency to the process and standards Minnesota uses in resolving disputes concerning the conduct of public employees.</p> <p class="opinion_quote">Second, arbitrator reasoning and standards that appear in published decisions serve as guidance to other public employers in making decisions concerning similar issues. Finally, other arbitrators regularly refer to reasoning and standards in published decisions when examining new cases. This is the way the law of labor arbitration develops and improves.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Tilsen's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in an arbitration decision that sustains a grievance and reverses all aspects of any disciplinary action against a public employee?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified. <br /> <br /> Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public; subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Pursuant to Minnesota Statutes, section 179A.21, subdivision 3:</p> <p class="opinion_quote">Arbitration decisions authorized or required by a grievance procedure are subject to the limitations contained in section 179A.16, subdivision 5. The arbitrator shall send the commissioner a copy of each grievance arbitration decision and any written explanation. If any issues submitted to arbitration are settled voluntarily before the arbitrator issues a decision, the arbitrator shall report the settlement to the commissioner.</p> <p>Pursuant to Minnesota Statutes, section 179A.04, subdivision 3(a)(7), the Commissioner of the Bureau shall, "receive, catalogue, file, and make available to the public all decisions of arbitrators and panels authorized by sections 179A.01 to 179A.25, all grievance arbitration decisions to the extent the decision is public under section 13.43, subdivision 2, paragraph (b), and the commissioner's orders and decisions."</p> <p>As noted above, section 13.43, subdivision 2(b) provides, "[a] disciplinary action does not become public data if an arbitrator sustains a grievance and reverses all aspects of any disciplinary action."</p> <p>Data related to a disciplinary action that an entity imposes on a public employee, which was subsequently completely reversed in arbitration, are not enumerated as public pursuant to subdivision 2 of section 13.43; therefore the data are private per subdivision 4.</p> <p>Commissioner Tilsen stated that the Bureau's current practice is to publish this type of decision with the employee's name redacted. However, the fact that an employee was disciplined, and the discipline was completely reversed in arbitration, is not public under section 13.43. Thus, in this context, the employee's name is private.</p> <p>Accordingly, the Bureau may not publish or in any other way make public arbitration decisions (that arbitrators must forward to it) that reverse all aspects of disciplinary action, as section 179A.04 otherwise requires, because the entire decision is private under section 13.43.</p> <p>The Commissioner acknowledges and appreciates Commissioner Tilsen's comments that the decisions are instructive to the public and other arbitrators, and offers the following guidance to the Bureau in response to its questions about whether it can release any data in the circumstances at issue here.</p> <p>The Bureau can always seek the employee's consent to release the arbitrator's decision to the public. In addition, although government entities are not required to create data under Chapter 13, the Bureau may elect to redact or summarize a decision and make it public, if it can do so without disclosing private personnel data. In that case, the Bureau might seek to work with the employer, who is in the best position to decide which specific data in the decision do or could identify the employee. However, particularly in high-profile situations, when details of the disciplinary action are known to the public, the Bureau may need to secure the data subject's consent to release any data.</p> <p>The Commissioner emphasizes that the Bureau cannot release private data, and is not obligated to take any measures in order to do so. Thus any of the preceding options is entirely discretionary, and the Bureau should make those determinations on a case-by-case basis.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Tilsen raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, data in an arbitration decision that sustains a grievance and reverses all aspects of any disciplinary action against a public employee are private personnel data, pursuant to Minnesota Statutes, section 13.43, subdivision 4.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 15, 2014</p> <hr /></td> </tr> </tbody> </table> </div>2676152664642669602022-01-18T19:20:53Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267002" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2014-03-26T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, did the Minnesota Campaign Finance and Public Disclosure Board respond appropriately to a request for data about the January 7, 2014 executive session related to a conciliation agreement between the Board and the Minnesota Senate DFL Caucus? March 26, 2014; Campaign Finance and Public Disclosure Board36<div id="opinion_introbox" xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20" xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 4, 2014, the Information Policy Analysis Division (IPAD) received a letter dated same, from Senator Scott Newman. In his letter, Sen. Newman asked the Commissioner to issue an advisory opinion about his right to gain access to certain data the Campaign Finance and Public Disclosure Board (the Board) maintains.</p> <p>On behalf of the Commissioner, IPAD wrote to Gary Goldsmith, Executive Director and data practices responsible authority of the Board, in response to Sen. Newman's request. The purposes of this letter, dated February 13, 2014, were to inform him of Sen. Newman's request and to ask him to provide information or support for the Board's position. On February 28, 2014, IPAD received a response, dated same, from Mr. Goldsmith. <br /> <br /> In his opinion request, Sen. Newman wrote:</p> <p class="opinion_quote">I recently requested that The Campaign Finance and Public Disclosure Board release public information from their investigation of the Senate DFL Caucus independent expenditure violations. The Board declined to release the information requested stating the investigation is "confidential" under Minnesota Statutes Section 10A.02, subdivision 11(d) and Minnesota Rules Part 4525, subpart 5.</p> <p>In his response to the Commissioner, Mr. Goldsmith provided the following facts:</p> <p class="opinion_quote">The investigation involved thirteen candidates and two units of the DFL party and was long and complex, requiring the discovery of many documents and the taking of many depositions; <br /> At its meeting of December 17, 2013, the Board discussed the proposed stipulation of facts, the proposed settlement agreement, and a draft of possible findings, order, and memorandum that staff had prepared for Board consideration. Legal counsel for the [DFL candidates and units] addressed the Board as did Board staff</p> <p class="opinion_quote">These three documents were published to the Board's website on the afternoon of December 17, 2013. With the release of the findings, the official record of the investigation was also made public.</p> <p class="opinion_quote">The official record of any Board investigation includes:</p> <ol class="opinionquoteinquote"> <li>The complaint or complaints</li> <li>Notices advising respondents of the complaints</li> <li>Notices advising respondents of any expansion of the investigation</li> <li>Requests to respondents for documents or for answers to questions</li> <li>Any responses received from respondents</li> <li>Transcripts of any depositions taken during the investigation</li> <li>Staff notes regarding any evidentiary conversation that took place as part of the investigation</li> <li>Other evidence that the Board considered in making its decision.</li> </ol> <p class="opinion_quote">What is excluded from the official record of the investigation are:</p> <ol class="opinionquoteinquote"> <li>Staff memoranda to the Board regarding the investigation</li> <li>Internal staff notes or memoranda that were not provided to the Board.</li> <li>Recordings of executive session meetings at which the investigation was discussed</li> <li>Minutes of executive session meetings at which the investigation was discussed.</li> </ol> <p class="opinion_quote">In preparation for the January 7, 2014, meeting I placed an item on the Board's regular session agenda listed as "Follow-up on investigation of expenditures by the DFL Senate Caucus." After conversations with the Board's legal counsel, the Board Chair, and senior staff, I concluded that the item should have been placed on the executive session [a meeting closed to the public] agenda. As a result, the regular session agenda was re-issued without the improperly placed item.</p> <p>As part of his advisory opinion request, Sen. Newman included a letter he wrote on January 15, 2014, to Board Chair Deanna Wiener, requesting the following data:</p> <ol class="opinion_quote"> <li>All statements, documents, emails, phone calls, or other matter associated with the decision to move the agenda item to executive session.</li> <li>All statements, documents, emails, phone calls, or other matter of record from the executive session.</li> </ol> <p>In replying to Sen. Newman's request, Mr. Goldsmith wrote, "the materials you have requested are considered confidential under Minnesota Statutes Section 10A.02 and under the doctrine of attorney-client privilege."</p> <hr /> <h2>Issue:</h2> <p>Based on Sen. Newman's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the Minnesota Campaign Finance and Public Disclosure Board respond appropriately to a request for data about the January 7, 2014 executive session related to a conciliation agreement between the Board and the Minnesota Senate DFL Caucus?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Before discussing the issue presented in this advisory opinion, the Commissioner wishes to address the scope and jurisdictional concerns raised by Mr. Goldsmith in his response. On behalf of the Board, Mr. Goldsmith wrote:</p> <p class="opinion_quote">The Board considers Senator Newman's complaint to be primarily based on Minnesota Open Meeting Law, not on the Data Practices Act. This issue, arising under the Open Meeting law, is not subject to the advisory opinion process defined in Chapter 13 and thus, would not be in the Commissioner's jurisdiction.</p> <p>Firstly, while the facts in this advisory opinion relate to the Open Meeting Law, Minnesota Statutes Chapter 13D, and the Data Practices Act, Chapter 13, this opinion will address only the Board's response to Sen. Newman's data request pursuant to Chapter 13, as stated in the issue above. Secondly, the Commissioner does have authority to issue advisory opinions involving Chapter 13D, pursuant to Minnesota Statutes, section 13.072, subdivision 1(b).</p> <p>An additional point of clarification, Mr. Goldsmith notes that the agreement was not a "conciliation agreement" as Sen. Newman characterized in his opinion request to the Commissioner. However, that fact, Mr. Goldsmith writes, "does not affect the issues involved in this advisory opinion request." The Commissioner notes it here, simply because the issue refers to a conciliation agreement.</p> <p>Minnesota Statutes, section 13.03, subdivision 1, provides:</p> <p class="opinion_quote">All government data collected, created, received, maintained or disseminated by a government entity shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.</p> <p>Minnesota Statutes, section 13.607, subdivision 2, states, "disclosure by the Campaign Finance and Public Disclosure Board of information about a complaint or investigation is governed by section 10A.02, subdivision 11."</p> <p>Minnesota Statutes, section 10A.02, subdivision 11(d), provides:</p> <p class="opinion_quote">A hearing or action of the board concerning a complaint or investigation other than a finding concerning probable cause or a conciliation agreement is confidential. Until the board makes a public finding concerning probable cause or enters a conciliation agreement:</p> <p class="opinionquoteinquote">(1) a member, employee, or agent of the board must not disclose to an individual information obtained by that member, employee, or agent concerning a complaint or investigation except as required to carry out the investigation or take action in the matter as authorized by this chapter; and</p> <p class="opinionquoteinquote">(2) an individual who discloses information contrary to this subdivision is subject to a civil penalty imposed by the board of up to $1,000.</p> <p>Chapter 13 defines "confidential" as data on individuals that "are made not public by statute or federal law and are inaccessible to the subject of the data." An "individual" is defined as a natural person. (See Minnesota Statutes, section 13.02, subdivisions 3 and 8.)</p> <p>Minnesota Rules, part 4525.0200, subpart 5, provides:</p> <p class="opinion_quote">Any portion of a meeting during which the board is hearing testimony or taking action concerning any complaint, investigation, preparation of a conciliation agreement, or a conciliation meeting must be closed to the public. The minutes and tape recordings of a meeting closed to the public must be kept confidential.</p> <p>In denying Sen. Newman's data request, Mr. Goldsmith cited section 10A.02, subdivision 11, and Minnesota Rule, part 4525.0200, subpart 5, and wrote: <br /></p> <p class="opinion_quote">Historically these provisions have been interpreted to mean that the investigative process is confidential except for the publicly released findings, conclusions, and orders and the official record. Minutes or records of the Board deliberations, discussions, direction to staff or votes regarding investigations are never made public.</p> <p>However, the Commissioner has previously opined that the plain language of section 13.03, subdivision 1, precludes classification by state rule. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267668" title="98-054" target="_blank">Advisory Opinions 98-054</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267559" title="06-015" target="_blank">06-015</a>.) Therefore, the Board may rely only upon the plain language of the statute to determine the classification of the data at issue here. In addition, data not specifically classified as not public are presumptively public.</p> <p>The challenge confronting the Board is that the plain language of section 10A.02 is incongruous with the current data practices classification scheme, as provided in Chapter 13, as well as the Board's investigative process.</p> <p>Section 10A.02, subdivision 11(d), states that hearings or actions are "confidential." As noted above, "confidential" classifies data on individuals that are not accessible to those individuals. To the extent that the Board collects, creates, or maintains data not on individuals (i.e., political parties or units), those data are not classified by the plain language of that section. (Mr. Goldsmith also stated that counsel for the DFL candidates and units participated in the December 17, 2013, closed meeting, suggesting that the data subjects may have had access to some of the data classified by the statute as confidential.)</p> <p>Sen. Newman argues that the investigative data are classified only temporarily as confidential by section 10A.02, subdivision 11(d), and that the data become public as demonstrated by subdivision 11a, which allows the Board to classify data as private under certain circumstances. This argument discounts the confidential classification in subdivision 11(d). However, it does illustrate another inconsistency; section 10A.02 does not explain when (or if) confidential data classified in subdivision 11(d) change classifications. Currently, the Board makes a distinction between the "official record," which becomes public, and items that it excludes from the official record and maintains as "confidential." Section 10A.02, however, does not contain a provision that supports that distinction. The section does provide that the threat of penalty in subdivision 11(d)(2), for disclosing information ceases once the Board issues a probable cause finding or enters into a conciliation agreement, which suggests that some data does indeed change classifications. It is unclear, however, which data a member, employee, or agent of the Board may disclose with impunity, after a finding or an agreement.</p> <p>Another example of the disparity between section 10A.02 and Chapter 13, is the plain language of section 10A.02, subdivision 12(c), which also purports to classify data. It provides that the Board may issue advisory opinions, but the request and the resulting opinion are "nonpublic." "Nonpublic data" are defined as data <em>not on individuals</em> that are <em>not public</em> but are accessible to the data subject (e.g., a corporation), if any. (See section 13.03, subdivision 9.) Section 10A.02, subdivision 12(c) also states that the Board may publish advisory opinions (i.e., make them public) and may withhold certain identifying information about the data requester (i.e., an individual). Neither of those provisions is consistent with a "nonpublic" classification.</p> <p>Finally, in addition to the statutory and rules-based arguments, Mr. Goldsmith also based his denial of Sen. Newman's data request on the doctrine of "attorney-client privilege." In his letter to Sen. Newman and his response to the Commissioner, Mr. Goldsmith argued that the January 7, 2014, meeting was permitted to be closed by the attorney-client privilege and as a result, Sen. Newman could not have access to the data he requested. (See Minnesota Statutes, section 13D.05, subdivision 3(b).) The Commissioner wishes to remind government entities and public bodies that Chapter 13D does not classify data; a validly closed meeting does not classify data as not public. However, Minnesota Statutes, section 13.393 governs certain types of data generated by an attorney acting in a professional capacity for a government entity and permits those data to be withheld from disclosure because they are not regulated by Chapter 13. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinions 01-075</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266767" title="03-003" target="_blank">03-003</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/list/appId/1/filterType/Date/filterValue/2005-02/page/1/sort//order/" title="05-009" target="_blank">05-009</a>.) Therefore, the Board may properly withhold data Sen. Newman requested to the extent that the data are subject to section 13.393.</p> <p>The Commissioner has previously considered statutory provisions where the Legislature has indicated an intention to protect some data from public disclosure but has not done so clearly or used the Chapter 13 classification terminology. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267775" title="94-046" target="_blank">Advisory Opinions 94-046</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267701" title="00-004" target="_blank">00-004</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267391" title="07-005" target="_blank">07-005</a>.) In those opinions, as here, it is difficult for the Commissioner to ascertain the Legislature's full intent, and must therefore rely upon the plain statutory language. Because of the flaws in section 10A.02, the Commissioner is unable to determine which data the Board maintains are responsive to Sen. Newman's request, if any. To the extent that the Board maintains data in recorded statements, documents, emails, phone calls, or other matter of record from the January 7, 2014 executive session that are appropriately classified as confidential data on individuals, the Board properly denied access to them. The Board must review Sen. Newman's request in light of the discussion above and respond accordingly.</p> <p>The Commissioner understands the competing policy considerations regarding the Board's investigative process. He also appreciates that the Board's practices are long-standing. However, the Board does not have the statutory support that it needs to justify those practices. It can rely only upon the plain language of the statute to classify data. The Commissioner encourages the Board to seek clarification from the Legislature, so that the important work of the Board may be protected and disclosed appropriately.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Senator Newman is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Commissioner is unable to determine whether the Minnesota Campaign Finance and Public Disclosure Board responded appropriately to a request for data about the January 7, 2014 executive session related to a conciliation agreement between the Board and the Minnesota Senate DFL Caucus.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 26, 2014</p> <hr /></td> </tr> </tbody> </table>2670022666692022-01-18T19:20:53Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267388" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-12-23T16:14:43ZA member of the public asked various questions about whether a township’s park commission was subject to Chapter 13D, the Open Meeting Law (OML) and whether the township complied with various other provisions of the OML. The Commissioner concluded that the Park Commission was subject to the OML based on the ordinance creating the commission. The OML is silent with respect to whether public bodies should create agendas, but if an agenda was provided to commission members, a copy must be made available at the meeting pursuant to section 13D.01, subd. 6. To the extent that an email from the chairman was a one way communication, it did not violate the OML. Finally, because the Board changed the time and place of a regular meeting and the place of a previously-noticed special meeting, it was required to provide notice of a special meeting – three days notice, listing date, time, place, and purpose. December 23, 2013; Florence Township36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On October 30, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Jim Reitter, dated October 28, 2013. In his letter, Mr. Reitter asked the Commissioner to issue an advisory opinion regarding the Florence Township Board of Supervisors (the Board) members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>IPAD requested additional information, which Mr. Reitter provided on November 6, 2013.</p> <p>On November 12, 2013, IPAD wrote to Mike Blair, Chair of the Board. In its letter, IPAD informed Mr. Blair of Mr. Reitter's request and gave the members of the Board an opportunity to explain their position. On December 5, 2013, IPAD received a response, dated same, from Einar Hanson, attorney for the Board.</p> <p>A summary of the facts provided by Mr. Reitter follows.</p> <p>On August 19, 2013, the Florence Township Park Commission held a regularly scheduled meeting at the Township Hall, which Mr. Reitter attended and recorded. During the meeting, Mr. Reitter asked for and received a copy of the agenda. He then inquired as to whether the Commission made agendas available prior to the meetings, and the Chairman, Brad Stone, responded that the Commission did not publish agendas.</p> <p>The Park Commission meeting also included a discussion of an email that Mr. Stone had sent to a number of people, including all other Park Commission members, chairs of the other Township commissions, a Township Board supervisor, and several members of the public. The Park Commission provided Mr. Reitter a copy of the email to review during the meeting and Mr. Stone later sent Mr. Reitter a copy. The email encouraged the recipients to attend the August 19, 2013, Park Commission meeting and the August 26, 2013, Township Board meeting. The email also provided information about the possible sale of certain property within the Township and arguments for opposing the sale.</p> <p>Mr. Reitter continued:</p> <p class="opinion_quote">On Sunday, August 25, I went to the Florence Township Town Hall and reviewed an announcement which had been posted for a special meeting identified as Florence Township will have a special meeting on Monday, August 26th at 7:00 p.m. at the Town Hall for approval of an updated comprehensive plan.</p> <p class="opinion_quote">I arrived to attend the Florence Township Board regularly scheduled meeting on August 26, 2013 scheduled for 6 p.m. at the Florence Township Town Hall. Upon arriving at the town hall, there was an announcement posted that the meeting location had been moved to the Florence Township Community Center. The meeting started at 6:15euro;brvbar;</p> <p class="opinion_quote">At 7:00 p.m., an announcement was made that the remainder of the regular town board meeting was going to be suspended/postponed so that the special meeting to review the updated comprehensive plan could occur. After the review of the updated comprehensive plan, it was announced that the remainder of the regular town board meeting would continue and the township board business from the prior suspended/postponed agenda continued.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Reitter's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Is the Florence Township Park Commission subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D?</p> <p>2. Did the Chair of the Park Commission comply with Minnesota Statutes, Chapter 13D, when he sent an email to various members of the public and the government?</p> <p>3. Pursuant to Minnesota Statutes, Chapter 13D, are the Florence Township commissions required to provide copies of agendas?</p> <p>4. Did the Florence Township Board comply with Minnesota Statutes, Chapter 13D, at the August 26, 2013 special meeting?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><em><strong>Issue 1.</strong> Is the Florence Township Park Commission subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D?</em></p> <p>There is no dispute that the Florence Township Board of Supervisors is subject to the OML. The question before the Commissioner is whether the Township Park Commission is also subject to the law.</p> <p>Minnesota Statutes, section 13D.01, subdivision 1, states in pertinent part:</p> <p class="opinion_quote">All meetings, including executive sessions, must be open to the public</p> <p class="opinionquoteinquote">(c) of any</p> <p class="opinionquoteinquote">(1) committee,</p> <p class="opinionquoteinquote">(2) subcommittee,</p> <p class="opinionquoteinquote">(3) board,</p> <p class="opinionquoteinquote">(4) department, or</p> <p class="opinionquoteinquote">(5) commission,</p> <p class="opinion_quote">of a public body</p> <p>In his response to the Commissioner, Mr. Hanson described the Park Commission as being, under the authority of the Board of Supervisors and that it provides recommendations to the Board of Supervisors concerning matters within the scope of the Commissions duties, as expressly stated in the ordinance creating it. Mr. Hanson provided the Commissioner with a copy of the ordinance. Article 1 establishes the Commission and provides that the Commission will be made up of five residents and an ex-officio member, all selected by the Board. Article 2, establishes the Commission's powers, duties and procedures. Amongst these, are the powers: to advise the other Township commissions; to draft and maintain a park management plan; to draft and maintain an application procedure for Town residents; to recommend to the Board the acquisition of land; and to recommend to the Board the use of eminent domain and variances.</p> <p>Section 2.01, subsection (1) of Article 2, also states:</p> <p class="opinion_quote">Business shall be conducted by the Commission at regularly scheduled public meetings as prescribed in its bylaws and the Minnesota Open Meeting Law. The Commission shall make every effort to preserve the public nature of its meetings.</p> <p>Mr. Hanson argued that the Park Commission is not subject to Chapter 13D based on the holding in <em>Sovereign v. Dunn</em>, 498 N.W.2d 62, 67 (Minn. Ct. App. 1993) (<em>rev. denied</em>). However, the Commissioner is not persuaded that <em>Sovereign</em> applies here based on the plain language of section 13D.01, subdivision 1(c) and the ordinance creating the Commission.</p> <p>The Commissioner has previously addressed the issue of an all-citizen advisory panel that was created in statute, with duties both complementary and distinct from the public body under which it was created. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266807" title="08-007" target="_blank">Advisory Opinion 08-007</a>.) In concluding that the advisory panel was subject to Chapter 13D, as a committee of a public body, the Commissioner opined:</p> <p class="opinion_quote">All of these functions are actions taken on behalf of citizens who will be impacted by the decisions that are made about providing energy to the Rock Tenn recycling operation. As stated by the Minnesota Supreme Court in the <em>Prior Lake American</em> case, these are the types of discussions that should occur in public and any decision should be made in public.</p> <p>The Commissioner concludes that the Park Commission is a commission of a public body, and subject to the requirements of the OML.</p> <p><em><strong>Issue 2.</strong> Did the Chair of the Park Commission comply with Minnesota Statutes, Chapter 13D, when he sent an email to various members of the public and the government?</em></p> <p>The Commissioner has previously opined that the exchange of emails can lead to a violation of the OML. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267446" title="09-020" target="_blank">Advisory Opinion 09-020</a>.) In that opinion, a quorum of the Metro Gang Strike Force Advisory Board exchanged at least seven emails in an attempt to agree on language for a press release. The Commissioner concluded that the exchange was tantamount to a virtual meeting that was required to be open pursuant to the OML. Per <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267446" title="09-020" target="_blank">Advisory Opinion 09-020</a>:</p> <p class="opinion_quote">The Commissioner is aware that Minnesota courts have not ruled definitively on this issue. However, given the facts here, the Commissioner believes that per [<em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510 (Minn. 1983)] and [<em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 4 (Minn. 1983)], the conduct of the Advisory Board constituted a meeting, which was required to be public, and as such is impermissible under the OML.</p> <p class="opinion_quote">If Mr. Allen had sent his suggestion only to Mr. Shaver, and if Mr. Shaver had taken action without consulting a quorum of the Board, then, in the Commissioner's view, that conduct would be permissible. It seems reasonable that one-way communication between the chair and members of a public body is permissible, such as when the chair or staff sends meeting materials via email to all board members, as long as no discussion or decision-making ensues.</p> <p>Here, Mr. Stone sent an email to various members of the public and to all of his fellow Commission members. However, it is not clear from the record whether he received any response to it or engaged in any further discussion with a quorum or more of his colleagues on the Park Commission. (Any concern about Mr. Stone's communication with the public is not within the scope of the OML.)</p> <p>To the extent that Mr. Stone's email was a one-way communication, the Commissioner concludes that it did not violate the OML. The Commissioner reminds public bodies to be cautious in their use of email as a tool to conduct public business.</p> <p><em><strong>Issue 3.</strong> Pursuant to Minnesota Statutes, Chapter 13D, are the Florence Township commissions required to provide copies of agendas?</em></p> <p>Chapter 13D is silent with respect to agendas; it neither requires nor prohibits them. However, Minnesota Statutes, section 13D.01, subdivision 6(a), provides:</p> <p class="opinion_quote">(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:</p> <p class="opinionquoteinquote">(1) distributed at the meeting to all members of the governing body;</p> <p class="opinionquoteinquote">(2) distributed before the meeting to all members; or</p> <p class="opinionquoteinquote">(3) available in the meeting room to all members;</p> <p class="opinion_quote">shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</p> <p>Mr. Hanson writes that subdivision 6(a), does not say that copies of the agenda must be provided. Though Mr. Hanson is correct that the subdivision does not use those specific words, an agenda is comprised of the actual agenda items and as such, an agenda is the clearest example of material relating to the agenda items of the meeting. Therefore, it is the Commissioner's opinion that it is unreasonable for the Board to take the position that the subdivision would not to apply to the agenda itself.</p> <p>To the extent that an agenda is prepared or distributed to members of the body, Chapter 13D requires that at least one copy is made available to the public at the meeting. (See also, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267899" title="01-058" target="_blank">Advisory Opinions 01-058</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267355" title="07-014" target="_blank">07-014</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267288" title="07-024" target="_blank">07-024</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267319" title="08-015" target="_blank">08-015</a>.) (The Commissioner notes that certain public bodies subject to Chapter 13D may be required to create an agenda pursuant to other authority applicable to those bodies.)</p> <p>The Commissioner agrees with Mr. Hanson that the OML does not require the Board to make agendas available in advance of meetings. (Non-metro townships are not subject to Minnesota Statutes, Chapter 13, the Data Practices Act. In government entities subject to Chapter 13, members of the public may request and must receive copies of agendas prior to meetings, if any such agendas exist.)</p> <p><em><strong>Issue 4.</strong> Did the Florence Township Board comply with Minnesota Statutes, Chapter 13D, at the August 26, 2013 special meeting?</em></p> <p>Pursuant to Chapter 13D, public bodies may hold three types of meetings: regular, special, and emergency. For regular meetings, Minnesota Statutes, section 13D.04, subdivision 1, requires public bodies to keep a schedule on file at its primary offices. A meeting that differs in date, time or location from a regular meeting, is a special meeting. Pursuant to subdivision 2, a public body must post written notice of a special meeting at least three days before the meeting and include the date, time, place, and purpose on the notice. An emergency meeting, as defined by subdivision 3(d), is called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body.</p> <p>Here, the Board changed the place and time of the August 26, 2013, regularly scheduled meeting on the day of the meeting. By doing so, that meeting became a special meeting requiring three days' notice. The Board had previously noticed a special meeting for the same date, for which the location was also changed, thus requiring the Board to re-notice the meeting. Mr. Hanson explained that due to the weather and a lack of air conditioning in the Town Hall meeting room, the Board moved the meetings for the comfort of the attendees. He asserted that the need to move the meeting could be considered an emergency and the notice given by posting it at the bulletin board of the regular meeting place was sufficient notice.</p> <p>The Commissioner has previously opined that, examples of emergency situations would include holding a meeting to respond to a natural disaster or to a health epidemic caused by an event such as an accident or terrorist activity. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267124" title="06-027" target="_blank">Advisory Opinion 06-027</a>.) Because an emergency meeting is one in which a public body considers the response to an emergency situation, neither the Board's regularly-scheduled meeting at 6:00 p.m. nor the special meeting at 7:00 p.m. constituted an emergency meeting, such that a change of location would not require three days' notice.</p> <p>When conditions that require a change in the regular or previously-noticed schedule occur but fall short of requiring immediate consideration, the Board must provide three days' notice that includes the date, time, place, and purpose of the meeting. Changes to any of those notice requirements that occur before the meeting but after notice is posted require an additional three days' notice.</p> <p>The Commissioner understands that occasionally unforeseen circumstances arise that might require a reasonable change of location (i.e., a room in a different building nearby). He encourages the Legislature to consider including language in Chapter 13D that would allow a reasonable change of location for meetings that are currently required to be cancelled and rescheduled for a date at least three days later.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Reitter raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. The Florence Township Park Commission is subject to Minnesota Statutes, Chapter 13D.</p> <p>2. To the extent that Mr. Stone's email was a one-way communication that did not result in a continued discussion with a quorum or more of the Park Commission members, the email complied with the Open Meeting Law.</p> <p>3. Minnesota Statutes, Chapter 13D is silent with respect to agendas. To the extent that Florence Township Commissions create agendas, they should be made available to the public as part of the members' materials, pursuant to Minnesota Statutes, section 13D.01, subdivision 6.</p> <p>4. Because the Board changed the time and location of a regularly scheduled meeting and the location of a previously noticed special meeting, the August 26, 2013 meetings were special meetings requiring a notice of at least three days, which should have included the date, time, place, and purpose.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: December 23, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2673882671462671472670512022-01-18T19:23:14Z266258266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267778" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-11-27T16:14:43ZA government entity asked whether its method of creating summary data complied with Chapter 13. The data requester argued that the entity’s method did not create a risk of uniquely identifying an individual. In concluding that the entity is in the best position to make these types of determinations, the Commissioner noted that entities must balance their duty to provide access to public data with their responsibility to protect private data. November 27, 2013; Minnesota Housing Finance Agency36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2013). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On October 9, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Barbara Sporlein, Deputy Commissioner and Responsible Authority for the Minnesota Housing Finance Agency (Minnesota Housing). In her letter, Ms. Sporlein asked the Commissioner to issue an advisory opinion regarding access to certain data Minnesota Housing maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Tom Luce at the Institute of Metropolitan Opportunity (Institute), the original data requester, in order to offer him an opportunity to submit comments. In a letter dated, November 4, 2013, Jack McCann, Senior Staff Attorney and Myron Orfield, Executive Director of the Institute, responded.</p> <p>Ms. Sporlein provided a summary of the facts as follows:</p> <p class="opinion_quote">The Institute of Metropolitan Opportunity (the Institute ) requested Minnesota Housing to provide it with the following data for each household in each [low-income housing tax credit] development monitored by Minnesota Housing: race, ethnicity, use of rental assistance, disability status, family composition (children or no children), age (under 62 or 62 and over), income, and monthly rental payments. The requested data is associated with one tenant in a unit, namely, the head of household for that unit (with the exception of the family composition characteristic and the disability status characteristic, which reflect all of the tenants in the unit).</p> <p class="opinion_quote">Minnesota Housing is willing to provide the requested data to the Institute as summary data, provided that: (1) a certain amount of suppression is applied in order to protect the identity of an individual or characteristics that could uniquely identify an individual and (2) the Institute pays for the preparation of summary data pursuant to Minnesota Statutes section 13.05, subdivision 7.</p> <p class="opinion_quote">The Institute disagrees with Minnesota Housing's suppression method.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Sporlein's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Does the Minnesota Housing Finance Agency's method in preparing summary data comply with Minnesota Statutes, Chapter 13, in responding to a request for certain benefit data classified by Minnesota Statutes, section 13.462?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Summary data are derived from data on individuals but in which individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable. (See Minnesota Statutes, section 13.02, subdivision 19.) Minnesota Statutes, section 13.05, subdivision 7, classifies summary data as public. Minnesota Rules, part 1205.0200, and 1205.0700, provide additional guidance regarding summary data.</p> <p>In Advisory Opinion 00-011, the Commissioner opined:</p> <p class="opinion_quote">Summary data must be derived from what is otherwise completely private or confidential data. To create summary data, government entities are required to remove all personal identifiers from the private or confidential data.</p> <p>Minnesota Statutes, section 13.462, classifies certain benefit data related to applicants and recipients of benefits or services from various housing programs administered by government entities. Subdivision 2, classifies some data as public; however that subdivision does not apply to individuals seeking or receiving rental assistance. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267677" title="05-023" target="_blank">05-023</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267289" title="08-002" target="_blank">08-002</a>.) Subdivision 3, classifies all other benefit data as private.</p> <p>The Institute and Minnesota Housing agree that the summary data at issue here are derived from solely private data as classified pursuant to section 13.462.</p> <p>Ms. Sporlein wrote:</p> <p class="opinion_quote">Minnesota Housing is willing to provide the data as summary information after applying the following two suppression factors: (1) it would suppress the data for developments that contain 12 or fewer reporting households, and (2) it would provide aggregate numbers for a characteristic for a particular development so long as the minimum cell size for non-predominant households reporting a status was met. The minimum cell size is based on a sliding scale. The result is that summary data about a particular characteristic would be suppressed in developments in which households with the predominant characteristic make up at least 90% of the households in the development. This ensures that someone would not have a 90% or more probability of correctly identifying a tenant or characteristics of a tenant by choosing the predominant characteristic.</p> <p class="opinion_quote">The Institute does not object to the 12 household suppression threshold. The Institute does object to Minnesota Housing's suppression method.</p> <p>In the Institute's comments to the Commissioner, Mr. McCann and Mr. Orfield, argue that, there clearly is a bright line rule regarding summary data: it is to be suppressed only to the extent it uniquely identifies a specific individual. They further wrote that revealing a characteristic is a concern only with respect to data on individuals, when individual identities are known.</p> <p>While the Commissioner believes that the method described by Minnesota Housing does not seem to disclose private data, he is unable to determine whether the method provides appropriate access to public summary data.</p> <p>The Commissioner has previously opined on the disclosure of data about students and public employees, concluding that entities may not release de-identified private data where there is a risk that an individual will be uniquely identified. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267188" title="09-004" target="_blank">09-004</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267851" title="01-053" target="_blank">01-053</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266974" title="07-001" target="_blank">07-001</a>.) In those instances, however, various other data elements including the ultimate unique identifier - an individual's name - are, or could be, public (students' names may be public directory information). Thus, when the de-identified data are matched against the public data, private data on an individual could be revealed. Here, where the requested benefit data are private, the likelihood of uniquely identifying a specific renter seems somewhat remote. Moreover, Minnesota Housing notes that not all units report the demographic characteristics requested by the Institute and some of the requested elements apply to the heads of household, whereas other data elements (like disability status) apply to all tenants in the rental unit. Both of these factors would also seem to reduce the risk that Minnesota Housing would disclose private data about a specific individual. (See also, Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266906" title="99-045" target="_blank">99-045</a>.)</p> <p>Nevertheless, whether the 90% threshold described by Minnesota Housing impermissibly withholds public summary data, as the Institute argues, is not an issue the Commissioner can resolve. In the absence of clearer guidance from state or federal law, the Commissioner believes that Minnesota Housing is in the best position to make that decision. He has repeatedly opined that government entities are in the best position to make these types of determinations based on their familiarity with the data and the context in which they are administered. Minnesota Housing has an obligation to provide summary data to the Institute. In doing so, it must balance its obligations to protect the private data upon which the summary data are based and to provide all of the public data that are responsive to the Institute's request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Sporlein raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Commissioner cannot determine whether Minnesota Housing's method of creating summary data complies with Minnesota Statutes, Chapter 13.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: November 27, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2677782663472669012022-01-18T19:23:14Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267667" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-09-06T15:14:43ZA City asked about the classification of data on a driver’s license magnetic stripe and driving citations that it wanted to collect, create, and maintain. The City argued that the data were public arrest data, pursuant to Minnesota Statutes, section 13.82, subd. 2. The Commissioner opined that the elements identified by the City as citation data were always public pursuant to section 13.82, subd. 2, for adult drivers. And, except for the name, sex, and address of adult drivers, which are public arrest data, the data on a driver’s license magnetic stripe are presumptively public, unless the data are a part of an active investigation. September 6, 2013; City of Spring Lake Park36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On July 17, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Dawn Speltz, attorney for the City of Spring Lake Park. In her letter, Ms. Speltz asked the Commissioner to issue an advisory opinion regarding classification of certain data that the City would like to collect and administer.</p> <p>On behalf of the Commissioner, IPAD wrote to Department of Public Safety Commissioner, Mona Dohman. The purpose of this letter, dated July 19, 2013, was to invite her to provide comments. Commissioner Dohman did not submit comments.</p> <p>A summary of the facts as Ms. Speltz provided, follows. The City of Spring Lake Park is considering options to allow individuals who commit traffic offenses to participate in an online education program in lieu of appearing in court. In the course of these discussions, a question arose regarding the classification of the data involved.</p> <p class="opinion_quote">To utilize the traffic education programs, the data collected at the time of the traffic offense to issue the resulting citation, including data on the individual and their driver's license information would be submitted to the vendor of the traffic education program's server at the time of the traffic stop. This data would be submitted by swiping the offender's driver's license, and the data contained on the mag stripe would be submitted to the vendor and maintained on their server, to allow the vendor to verify that the individual qualifies for the program, and to access the applicable information to allow the offender to complete the program online through the vendor's website. No data is transmitted to or from [the Department of Public Safety] as part of this process.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Speltz's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the data on a driver's license magnetic stripe and a driving citation, collected, created, or maintained by the Spring Lake Park Police Department?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Most data collected, created, and maintained by law enforcement agencies are classified pursuant to Minnesota Statutes, section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events. Subdivision 2, provides that arrest data, " created or collected by law enforcement agencies which document any actions taken by them to cite, arrest, incarcerate, or otherwise substantially deprive an adult individual of liberty shall be public at all times." Subdivision 7, classifies investigative data that a law enforcement agency collects or creates in order to prepare a case against a person, as confidential or protected nonpublic while the investigation is active.</p> <p>Ms. Speltz identified the specific data at issue in the City's opinion request:</p> <p class="opinion_quote">There are two separate components of data that would be shared with the traffic education program vendors. 1) Data stored on the mag stripe on the individual driver's license that would be swiped by the officer to input into the system. 2) Data relating to the offense and resulting citation.</p> <p class="opinion_quote">The data contained on the mag stripe is as follows: 1. Individuals (sic) Name, 2. Address, 3. Height, 4. Weight, 5. Eye Color, 6. Birth Date, 7. Sex, 8. Expiration Date, 9. License Number. The data from the citation would include the time, date and place of action, the charge and arrest information, the identity of the agency and the unit within the agency issuing the citation, the name, age, sex and last known address for the individual cited, response or incident report number. It is the City's position that all of these elements are classified as public pursuant to Minn. Stat. section 13.82, subd. 2.</p> <p>All of data elements Ms. Speltz identified, as relating to the offense and resulting citation are arrest data, per section 13.82, subdivision 2, paragraphs (a), (b), (f), (j), and (m), and are public at all times. <br /> <br /> Some of the data on the magnetic stripe are also classified as public, pursuant to section 13.82, subdivision 2: name, sex, and address. The remaining elements - height, weight, eye color, birth date, expiration date, and license number - are not specifically classified as public under subdivision 2; they are presumptively public per section 13.03. While data classified under section 13.82, subdivision 2, are always public, law enforcement data that are presumptively public may be classified as confidential or protected nonpublic while there is an active investigation, per section 13.82, subdivision 7. While Ms. Speltz did not state whether the data at issue will be part of an active investigation, it appears unlikely in the scenario she described.</p> <p>The City did not raise the issue of juvenile drivers in its opinion request and therefore, did not state whether juvenile drivers would be eligible for the online education program. Nevertheless, the Commissioner notes that records related to juvenile drivers may be classified differently than adult drivers, depending upon the circumstances of the offense. For instance, some of the data, including the juvenile driver's name and driver's license data may be classified pursuant to Minnesota Statutes, section 260B.171, subdivision 5. (See also, Minnesota Statutes, section 260B.225.)</p> Finally, the Commissioner notes that because the data are collected directly from the driver and no data are transmitted to or from the Minnesota Department of Public Safety, the Federal Drivers Privacy Protection Act (18 U.S.C. 2721 et seq.) is not applicable here. <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Speltz raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, the following data on adult drivers not part of an active investigation that the City of Spring Lake Park Police Department wishes to collect, create, and maintain are public: height, weight, eye color, birth date, expiration date, and license number.</p> <p>Pursuant to Minnesota Statutes, section, 13.82, subdivision 2, the following data that the Department wishes to collect, create, and maintain are public: the time, date and place of action, the charge and arrest information, the identity of the agency and the unit within the agency issuing the citation, the name, age, sex and last known address for an adult individual cited, response or incident report number.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: September 6, 2013.</p> <hr /> </td> </tr> </tbody> </table> </div>2676672667222670282022-01-18T19:23:14Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266988" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-08-09T15:14:43ZA member of the public asked whether a city council had properly closed a meeting for labor negotiation strategies and developments pursuant to Minnesota Statutes, sections 13D.01 and 13D.03. The Commissioner opined that the City did not comply with section 13D.01, because it did not identify the authority to close the meeting or describe the subject of the meeting. The City did not comply with section 13D.03, because it failed to vote in open session to hold a closed meeting, as required, and because the Council also discussed subjects beyond the scope of labor negotiations and developments.August 09, 2013; City of Mound36<p xmlns="http://www.w3.org/1999/xhtml">This is an opinion of the Commissioner of Administration pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> <h2 xmlns="http://www.w3.org/1999/xhtml">Facts and Procedural History:</h2> <p xmlns="http://www.w3.org/1999/xhtml">On June 6, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from John McKinley. In his letter, Mr. McKinley asked the Commissioner to issue an advisory opinion regarding Mound City Council members' conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). IPAD requested additional information/clarification, which Mr. McKinley provided on June 26, 2013.</p> <p xmlns="http://www.w3.org/1999/xhtml">On June 27, 2013, IPAD wrote to Mayor Mark Hanus, Chair of the Mound City Council. In its letter, IPAD informed Mayor Hanus of Mr. McKinley's request and gave the Council an opportunity to explain its position. On July 19, 2013, IPAD received a response, dated same, from Sarah Sonsalla, attorney for the City.</p> <p xmlns="http://www.w3.org/1999/xhtml">A summary of the facts as provided by Mr. McKinley follows:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>On June 26, 2012, the Mound City Council held a regularly scheduled City Council meeting… Item number 9 on the agenda was listed as Executive Session for labor negotiations…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>There were three labor unions the City of Mound were in negotiations with for the 2011/2012 union contracts. There had been no settlement with any of the unions for the 2011-2012 contracts at the end of 2011, so both the Police Supervisor Union and the Patrol Union went though (sic) mediation.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>...</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The mediation did not prove fruitful so the Police Supervisors Union filed for binding arbitration in the beginning of 2012… This arbitration award was what was being presented to the City Council at this executive session on June 26, 2012.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The third union the city negotiates with is the Public Works Department. This unit did not come to any settlement with the city until both the Police Supervisors and the Police Patrol units (sic) contracts were settled.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At 8:05 pm on June 26, 2012, the City Council went into closed meeting. The closed meeting was recorded ... and was made available to the public after all labor negotiations for contract years 2011-2012 were concluded on, or about 11-20-2012.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The City Council did not vote to go into the closed meeting ... Mayor Hanus simply stated the City Council would be going into "executive session" to discuss labor negotiations.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. McKinley requested and reviewed the audiotape of the closed meeting and offered the following comments:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>For just over the first 10 minutes of the meeting, [the Council] did discuss the arbitration award and the implications on the other two labor unions and the City of Mound.</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>At about the 10 minute and 15 second mark on the tape, [the Finance Director] announces they are going on to "page two". [She] states she believes, "it is related because it will have labor implications ...". For the next approximately 42 minutes [the Council] discuss [various issues - Mr. McKinley provided approximately a page and a half of topics].</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Mr. McKinley provided the Commissioner with the recording and a transcript of that meeting. The City also provided a transcript, including portions Mr. McKinley did not transcribe. The Commissioner was not provided with the document to which the Finance Director referred ("going on to page two") and therefore, has not had an opportunity to review it.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Issues:</h2> <table xmlns="http://www.w3.org/1999/xhtml"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Based on Mr. McKinley's opinion request, the Commissioner agreed to address the following issues:</p> <ol> <li>Did the Mound City Council comply with Minnesota Statutes, section 13D.01, subdivision 3, when it a closed meeting on June 26, 2012 by stating, "the Council is going to go into an Executive Session regarding labor negotiations"?</li> <li>Did the Mound City Council comply with Minnesota Statutes, section 13D.03, when it held a closed meeting to consider strategies for labor negotiations?</li> </ol> <hr /></td> </tr> </tbody> </table> <h2 xmlns="http://www.w3.org/1999/xhtml">Discussion:</h2> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 1.</strong> Did the Mound City Council comply with Minnesota Statutes, section 13D.01, subdivision 3, when it a closed meeting on June 26, 2012 by stating, "the Council is going to go into an Executive Session regarding labor negotiations"?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.01, subdivision 3, states, "[b]efore closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed."</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner has addressed the requirements of closing a meeting in previous opinions. (See Advisory Opinions <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267613" target="_blank">06-012</a>, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267497" target="_blank">06-020</a>, and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267617" target="_blank">07-018</a>). In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267497" target="_blank">Advisory Opinion 06-020</a>, the Commissioner discussed at length the three requirements contained in subdivision 3: 1) a statement on the record; 2) the specific grounds allowing the meeting to be closed (the statutory authority); and 3) a description of the subject to be discussed (the description must go beyond simply identifying the subject).</p> <p xmlns="http://www.w3.org/1999/xhtml">Mayor Hanus closed the Mound City Council meeting by issuing the following statement in open session:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>The Council is going to go into an Executive Session regarding labor negotiations and so that's where we're going to be. We will be coming out after that's completed. I don't know how long that's going to be, but we will be back to close out the meeting when that has completed. So with that we will proceed to Executive Session.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">While the City had the authority to close the meeting for labor negotiation strategies or developments, it did not meet its obligations under section 13D.01. Mayor Hanus' statement satisfied the first requirement of subdivision 3, but, it did not satisfy the second and third requirements. The statement should have also identified the authority to close the meeting (i.e., Minnesota Statutes, section 13D.03) and specifically described the subject (e.g., labor negotiations/strategy involving the City's negotiations with the Police Supervisors' union).</p> <p xmlns="http://www.w3.org/1999/xhtml"><em><strong>Issue 2.</strong> Did the Mound City Council comply with Minnesota Statutes, section 13D.03, when it held a closed meeting to consider strategies for labor negotiations?</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, section 13D.03, subdivision 1, provides:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>(a) Section 13D.01, subdivisions 1, 2, 4, 5, and section 13D.02 do not apply to a meeting held pursuant to the procedure in this section.  <br /></em><em>(b) The governing body of a public employer may by a majority vote in a public meeting decide to hold a closed meeting to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25. <br /> (c) The time of commencement and place of the closed meeting shall be announced at the public meeting. <br /> (d) A written roll of members and all other persons present at the closed meeting shall be made available to the public after the closed meeting.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">In his opinion request, Mr. McKinley stated that the Council did not vote before going into the closed meeting. Ms. Sonsalla responded:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>While the Council may not have a formal vote on the record, the Council closed the meeting by consent of the Council as a whole ... While the members did not hold a vote, the Council clearly agreed not by a majority, but unanimously, to close the meeting for the specific purpose set forth in Minnesota Statutes Section 13D.03.</em></p> <p xmlns="http://www.w3.org/1999/xhtml">The plain language of section 13D.03, subdivision 1, requires a vote by a majority of the members in a public meeting and an announcement of the time and location of the closed meeting. Here, again, the Council had the authority to go into closed session, but did not fulfill one of the requirements to exercise that authority. The Commissioner notes that, while section 13D.03, subdivision 1(a), does not require votes taken <em>at</em> a meeting closed for discussion of labor negotiation strategies to be recorded in a journal of votes, the vote taken to close the meeting is required to be recorded in a journal. (See Minnesota Statutes, section 13D.01, subdivision 4.) Because the Council did not vote, it could not be recorded in the journal of votes as required.</p> <p xmlns="http://www.w3.org/1999/xhtml">Another issue raised by Mr. McKinley, is whether the closed meeting went beyond the scope of what is allowable under section 13D.03, subdivision 1(b): "a closed meeting to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25." Both Mr. McKinley and the City agree that the first 10 minutes of the recording involved discussion of the arbitration award for the police supervisors union, which falls squarely within the statutory provision. The remaining approximately 42 minutes is in dispute.</p> <p xmlns="http://www.w3.org/1999/xhtml">Ms. Sonsalla summarized the discussion:</p> <p xmlns="http://www.w3.org/1999/xhtml"><em>In the context of the arbitration award's impact and future negotiations, [the Finance Director] also discussed other budget alternatives for police services, including keeping and adding needed in-house officers; contracting for services with a neighboring community; or combining services with a neighboring community. Specifically, [she] informed the Council that her purpose was to discuss managing expenses related to the police department, including the cost of negotiation results with the in-house department, while continuing to address the City's deficit…</em></p> <p xmlns="http://www.w3.org/1999/xhtml"><em>As [she] presented the information, the Council engaged with [her] and each other, posing several questions about the impact of the existing and future police labor costs on the budget. In the context of the information regarding the arbitration award, police labor costs and the impact of labor negotiations, the Council also engaged with [her] on the possible alternatives to the in-house police department. [Citations omitted.]</em></p> <p xmlns="http://www.w3.org/1999/xhtml">Minnesota Statutes, Chapter 13D, limits the discussions in a meeting closed to consider strategy for labor negotiations or developments conducted <em>pursuant to Minnesota Statutes, section 179A.01-179A.25</em>. The phrase "labor negotiations" must be read in conjunction with Minnesota Statutes, Chapter 179A, which governs collective bargaining for public employees. Meetings cannot be closed for general personnel or budgetary discussions. The transcript of the closed meeting suggests that the Council was aware of the boundaries established by the Open Meeting Law and made a good faith effort to act within them. However, while the make-up of its police force certainly has an impact on the City's budget and the discussion about contracting with another municipality for police services may fall under that umbrella of collective bargaining negotiations or developments, issues of city hall personnel, transferring staff to a new building and renting out the current city hall building are outside the scope of a meeting closed under section 13D.03.</p> <p xmlns="http://www.w3.org/1999/xhtml">The Commissioner understands that permissible labor negotiation discussions might reasonably raise other issues for public bodies, particularly with regard to budgetary matters. However, public bodies must be mindful of the limitations that Chapter 13D imposes with regard to subjects discussed in closed meetings, and restrict themselves to those topics. Fulfilling the obligations discussed in Issue 1 can aid public bodies in meeting that requirement.</p> <hr xmlns="http://www.w3.org/1999/xhtml" /> <h2 xmlns="http://www.w3.org/1999/xhtml">Opinion:</h2> <p xmlns="http://www.w3.org/1999/xhtml">Based on the facts and information provided, the Commissioner’s opinion on the issues Mr. McKinley raised is as follows:</p> <ol xmlns="http://www.w3.org/1999/xhtml"> <li>The Mound City Council did not comply with Minnesota Statutes, section 13D.01, subdivision 3, when it a closed meeting on June 26, 2012 because it did not identify the authority for closing the meeting and did not describe the subject of the meeting.</li> <li>The Mound City Council did not comply with Minnesota Statutes, section 13D.03, subdivision 1(b), when it failed to take a public vote to go into closed session for consideration of labor negotiations. The Council did not comply with section 13D.03, when it discussed various topics related to city hall personnel, transferring staff to a new building and renting out the current city hall building.</li> </ol> <p xmlns="http://www.w3.org/1999/xhtml">Signed:</p> <p xmlns="http://www.w3.org/1999/xhtml">Spencer Cronk <br /> Commissioner</p> <p xmlns="http://www.w3.org/1999/xhtml">August 9, 2013</p>2669882663502025-07-10T15:13:11Z266258266262266263266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266924" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-06-14T15:14:43ZA school district interviewed a student about his/her alleged involvement in an incident off school property. The district gave the student an oral Tennessen warning, which did not meet the full statutory notice requirements. The oral notice was not adequate because the district did not clearly state the consequences to the student of providing or not providing the requested data when it knew of at least one consequence to the student if he/ she provided data that confirmed his/her involvement in the incident. Also, the district did not identify those persons outside the district to whom it was authorized to disseminate the data, regardless of its intention to do so. June 14, 2013; Independent School District 743 (Sauk Centre)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On April 25, 2013, the Information Policy Analysis Division (IPAD) received an email from "X," in which X asked the Commissioner to issue an advisory opinion about whether Independent School District 743, Sauk Centre, violated his/her child's ("Y") rights as a data subject. Parents of two other District students provided statements in support of X's description of the issue.</p> <p>IPAD, on behalf of the Commissioner, wrote to Dan Brooks, Superintendent of the District, in response to X's request. The purposes of this letter, dated April 25, 2013, were to inform him of X's request and to ask him to provide information or support for the District's position. On May 13, 2013, IPAD received a response, dated same, from Susan E. Torgerson, attorney for the District.</p> <p>A summary of the facts as X provided them follows. X wrote that Y, a District student, was questioned by two District staff regarding an incident that occurred off school property. According to X, the District staff questioned Y "about [Y's] actions in the incident, where [Y] was, and who [Y] was with. [Y] was not given the Tennessen warning orally or in writing prior to the questioning. I was present during the questioning."</p> <p>The District also questioned the other students about their involvement in the incident. The parents, who were present when the District questioned their children, stated that the District also did not give their children Tennessen warning notices.</p> According to X, "[t]he private data collected from those interviews was then used to suspend some of the students from sports via the Minnesota State High School Leagues' [MSHSL] code of conduct." <hr /> <h2>Issue:</h2> <p>Based on X's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Independent School District 743, Sauk Centre, comply with Minnesota Statutes, Chapter 13, if it collected private data about a student from the student without providing the notice required by section 13.04, subdivision 2?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Data about students are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students, and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, data about students and their parents are private, and may not be released without statutory authority or consent.</p> <p>When a government entity collects private or confidential data about an individual from that individual, the entity must provide a notice, commonly referred to as a Tennessen warning. (Minnesota Statutes, section 13.04, subdivision 2.) This notice must contain the following: (a) the purpose and intended use of the data; (b) whether the individual can refuse or is legally required to provide the requested data; (c) what the consequences are of supplying or not supplying the data; and (d) the identity of other persons or entities outside of the collecting agency authorized by state or federal law to receive the data.</p> <p>The Commissioner previously has opined that if an entity does not give an individual a Tennessen notice when circumstances warrant it or if an entity's notice is inadequate, the entity cannot store, use, or disclose any of the data it collected from the individual. (Minnesota Statutes, section 13.05, subdivision 4.)</p> <p>In her comments to the Commissioner, Ms. Torgerson wrote:</p> <p class="opinion_quote">....The student received the notice required by law. The District obtained information about [Y] from a variety of sources, including the data subject, after an incident in the fall of 2011. The information about [Y's] violation was not shared outside the District by anyone in the District. ....</p> <p class="opinion_quote">.... <br /> At the start of each interview, each interview subject, including [Y], was told by [District administrator] the purpose/reason for the interview, that they had the right to refuse responding to the questioning, and that the information was to be used to help in the determination of their involvement in the situation and potential disciplinary action. They were also informed that the information would remain within the School District.</p> <p>Ms. Torgerson submitted an affidavit from the District employee who questioned the students</p> <p class="opinion_quote">I interviewed 13 students with regard to the incident I gave each of them the same notice at the beginning of the interview. I told them:</p> <p class="opinion_quote">a. The purpose of the interview was to find out who was responsible for the [incident of vandalism] <br /> b. I stated this clearly and repeatedly that they did not have to answer questions; <br /> c. If they did not answer I would need to draw conclusions without their input; <br /> d. That the information would be used to determine consequences/discipline for them and maybe for others; and <br /> e. That the information would be used within the District as necessary.</p> <p>As the Commissioner has discussed in many previous advisory opinions, the purpose of the Tennessen notice is to provide individuals with sufficient information to decide whether to provide the requested data. Here, the District told Y why the entity is collecting the data and how it will use the data, and that Y was not legally required to answer. However, the oral notice described above does not meet the full statutory notice requirements for the following reasons.</p> <p>First, it doesn't clearly state the consequences <em>to Y</em> of providing or not providing the requested data. It just states that if Y does not provide the data, the District will reach its conclusions without Y's input. According to Ms. Torgerson:</p> <p class="opinion_quote">The MSHSL (Minnesota High School League) rules do apply to student athletes. The District's activities director determined that [Y]'s participation in the incident constituted a violation of MSHSL Bylaw 206, Good Standing and General Eligibility requirements. [Y] was required to refrain from participation in actual contest activities for a period of two weeks. Each student athlete and a parent, sign an MSHSL Eligibility Statement at the start of the school year. The Eligibility Statement acknowledges the expectations and the consequences of violations. In this instance, the nature of the violation allowed the local district to impose the consequence and did not require any reporting of the violation to the MSHSL.</p> <p>Evidently the District knew of at least one consequence to Y if Y provided data that confirmed his/her involvement in the incident, and it should have included that in its Tennessen notice.</p> <p>Second, the District told Y that the data would be used within the District "as necessary," but it did not identify those persons outside the District to whom it was authorized to disseminate the data, regardless of its intention to do so. For example, pursuant to Minnesota Statutes, section 13.32, subdivision 8(b)(5), the District had authority under certain conditions to disseminate the data about Y to the juvenile justice system. In addition, the District had authority to share the data pursuant to a court order. At minimum, the District needed to inform Y of those authorized disseminations.</p> <p>The Commissioner notes that although section 13.04 does not require written Tennessen notices, the factual dispute here demonstrates the importance for an entity to document in some manner that it gave proper notice. A simple way to do that is to provide the notice in writing, and ask the data subject to sign and date it.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by X is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Independent School District 743, Sauk Centre, did not comply with Minnesota Statutes, Chapter 13, because it collected private data about a student from the student without providing the full notice required by section 13.04, subdivision 2.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 14, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2669242662692022-01-18T19:23:12Z266258266367266520266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267892" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-04-11T15:14:43ZA member of the public sought access from the Minnesota Department of Public Safety/ Bureau of Criminal Apprehension (DPS/BCA) Archive Service Repository to certain license plate data. BCA and the local law enforcement agency have a joint powers agreement that governs the collection and maintenance of the data; however, neither DPS/BCA nor the agency maintains all of the data that together were responsive to the request. The Commissioner also discussed whether any of the requested data are system log files and/or audit trail data subject to a DPS security information declaration under section 13.37, as well as the applicability of the federal Driver’s Privacy Protection Act to the classification of the data. April 11, 2013; Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On December 26, 2012, the Information Policy Analysis Division (IPAD) received a letter from Ian Bratlie, on behalf of the American Civil Liberties Union of Minnesota (ACLU-MN). In his letter, Mr. Bratlie asked the Commissioner to issue an advisory opinion about ACLU-MN's right to gain access to certain data the Minnesota Department of Public Safety (DPS) maintains. IPAD asked Mr. Bratlie to withdraw his request, pending the issuance of a report by the Office of the Legislative Auditor. Mr. Bratlie renewed his request on February 26, 2013.</p> <p>IPAD, on behalf of the Commissioner, wrote to Ramona L. Dohman, DPS Commissioner, in response to Mr. Bratlie's request. The purposes of this letter, dated March 5, 2013, were to inform her of Mr. Bratlie's request and to ask her to provide information or support for DPS's position. On March 19, 2013, IPAD received a response, dated same, from E. Joseph Newton, General Counsel and Data Practices Compliance Official for DPS.</p> <p>A summary of the facts as Mr. Bratlie provided them follows. He wrote:</p> <p class="opinion_quote">The ACLU-MN is greatly concerned about racial profiling by law enforcement officers in Minnesota. We believe that law enforcement officials in Sibley County regularly run license plates of cars that they believe to belong to minorities. They can run license plates in two ways, they can either do it through dispatch or they can do it through on-board computers. When the searches are done through the on-board computer, the data stream is controlled by BCA. BCA and Sibley County Sheriff's Office have entered into a joint powers agreement to gather and store this information.</p> <p class="opinion_quote">To combat this discriminatory practice, the ACLU-MN requested information relating to searches made by Sibley County Sherriff's Office (hereafter SCSO). Our first request was to SCSO itself. However, they told us the information was held by BCA. They made a request to BCA for the data but were told by BCA that they could not provide the information to SCSO. <br /></p> <p>According to Mr. Bratlie, ACLU-MN then asked BCA for access to the data SCSO did not maintain, namely three items of data: 1) license plate number queries run through on-board computers, by officer and date, 2) the data transmitted from BCA in response to those queries, and 3) the number of transactions per officer.</p> <p>In response, BCA told Mr. Bratlie it had "no data responsive" to any of his requests. BCA "also suggested that information we were seeking might be protected by the Driver's Privacy Protection Act [of 1994, or "DPPA"]." (18 U.S.C. section 2721.)</p> <p>Mr. Bratlie objected to DPS's position, and again asked BCA for access to the three items of data. According to Mr. Bratlie, BCA "now claimed" that the data were not accessible because data responsive to item 1) were "security information" per Minnesota Statutes, section 13.37, item 2) were protected by DPPA, and that BCA had no data responsive to item 3).</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Bratlie's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Minnesota Department of Public Safety respond appropriately to a request for the following data?</p> <ul> <li>Data showing all license plate numbers run through Sibley County Sheriff patrol cars on-board computer system, by officer and date, from January 1, 2012 to May 31, 2012.</li> <li>Data showing the response to those Sibley County squad car license plate initiated requests.</li> <li>Data showing the total number of transactions requested, by officer, from January 1, 2012 to May 31, 2012.</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Mr. Newton described BCA's "Archive Service" repository, which documents transactions made over its secure network to and from more than 20 repositories of data. According to Mr. Newton, the various repositories of data on individuals "include more than license plate data." He wrote:</p> <p class="opinion_quote">One type of transaction recorded in the Archive Service is a query that requests information maintained by the DPS Driver and Vehicle Services Division (DVS). An authorized criminal justice agency employee can retrieve DVS data by entering a license plate number. DVS returns data about the vehicle associated with the license plate and the registered owner. Those returned data elements are: the license plate, year and type of registration, the name, address and date of birth of the registered owner, the vehicle identification number or VIN, the year, make, model and color of the vehicle, the month the plate expires and the sticker number attached to the plate. Depending on the query used, driver's license information for the registered owner may also be returned. ....</p> <p>Mr. Newton also stated:</p> <p class="opinion_quote">In order to retrieve data over the secure network, authorized agencies identify the devices that submit and receive data. If the device is a fixed computer in the offices of the authorized agency, a unique value is assigned for each user of that device and that information is stored in Archive Service. For a mobile device like a laptop that connects to the secure network, only the device identifier is known or stored, no information about the identity of the mobile user is available. Because the mobile devices may be shared by agency employees, the joint powers agreement between the agency and BCA requires that the agency be able to tell BCA which employee was using a mobile device at a particular date and time, if that information is needed to evaluate usage or resolve some other issue.</p> <p>Mr. Newton stated that BCA maintains "license plate" data only in the Archive Service, and that those data "are classified as private data on individuals or non public data by a security information declaration issued by the DPS responsible authority. The query and response data requested in the first two items are both covered by the declaration."</p> <p>Minnesota Statutes, section 13.37, subdivision 1 (a), in relevant part, 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." Section 13.37, subdivision 2, classifies security information as not public.</p> <p>Mr. Newton wrote to the Commissioner:</p> <p class="opinion_quote">Recognizing the jeopardy that could result to law enforcement officers, victims of crime and the general public if this quantity of data concerning the activities of criminal justice agencies and their employees was available to the public, the BCA requested that the DPS Commissioner ... issue a security information declaration to protect the data in the Archive Service. ....</p> <p>In her written determination classifying "all government data contained in the system log files and the audit trail" as security information under section 13.37, Commissioner Dohman stated:</p> <p class="opinion_quote">The Department of Public Safety's Bureau of Criminal Apprehension has a division whose primary responsibility is to facilitate the sharing of data among criminal justice agencies. The division is called Minnesota Justice Information Services or MNJIS. ....</p> <p class="opinion_quote">As part of its operations, MNJIS stores system log files which are used primarily for internal troubleshooting. MNJIS also maintains an audit trail of queries and responses made by criminal justice agencies.... These files and audit trail, if accessible to the public, would permit those engaged in illegal activities to determine what investigations were underway as well as the data returned in response to queries made by criminal justice agencies.</p> <p>Mr. Newton stated that the security declaration applies to all data in the Archives Services, but the declaration states only that the system log files and the audit trail data are protected.</p> <p>In his comments, Mr. Newton correctly noted that the Commissioner has deferred to another entity's expertise in making determinations about classifying otherwise public data as security information. However, per Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267835" title="02-014" target="_blank">02-014</a>:</p> <p class="opinion_quote">The Commissioner has previously opined that section 13.37, subdivisions 1(a) and 2, may not be employed as a blanket classification scheme ....</p> <p class="opinion_quote">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.</p> <p>The Commissioner accepts, in general, Commissioner Dohman's reasons, as set forth in her written declaration, that there are times when <em>otherwise public</em> data in the Archive Service may be protected as security information. In addition to the rationale provided in the declaration that public access to system log files and audit trail data would "permit those engaged in illegal activities to determine what investigations were underway as well as the data returned in response to queries made by criminal justice agencies," the Commissioner (of Administration) is aware that a fundamental purpose to maintain audit trails is to safeguard access and use of those systems against both internal and external misuse and tampering. Audit trails also provide a means to verify system activity and the accuracy of the data. Public access to individual queries and resulting data returned from those queries, unless aggregated, may also reveal vulnerabilities in the robustness of a system's ability to prevent and track misuse and tampering With that said, the Commissioner encourages DPS to reconsider whether any of the data ACLU-MN requested are not system log files and/or audit trail data, and therefore are not subject to the security information declaration.</p> <p>As the Commissioner has stated in previous opinions, section 13.37 provides entities broad discretion to address security concerns. It is up to the Legislature to weigh those concerns with other sometimes competing interests, i.e., public accountability and data subjects' rights.</p> <p>(Note: In 2012, the Legislature amended section 13.37, subdivision 2, so that if an entity denies a data request based on the responsible authority's determination that the data are security information, then, "upon request, the government entity must provide a short description explaining the necessity for the classification." DPS should re-evaluate its declaration to determine whether the description provided fully articulates the necessity of the declaration in a manner that the public can understand.)</p> <p>Mr. Newton discussed another justification for denying Mr. Bratlie's request:</p> <p class="opinion_quote">The ACLU-MN is also not able to have access to the license plate data based on federal law. The license plate data maintained in the Archive Service are retrieved from the DVS repository. As noted in Minnesota Statutes, section168.346, subd. 1, license plate data, also known as vehicle registration data, are treated as provided in 18 United States Code section 2721. Pursuant to that federal law, the public is not allowed access to license plate data for individual registered owners. See section2721(a)(l). Because the registered owner can have access under the federal law, the closest state classification is "private data on individuals." Because the classification of the data "travels" with the data, DPS/BCA cannot disclose the data to a member of the public like the ACLU-MN.</p> <p>According to DPPA, a "State department" of motor vehicles<em>,</em> such as DPS, is generally prohibited from disclosing to the public "personal information" about an individual obtained by DPS in connection with a "motor vehicle record." Section 2725 of DPPA defines those terms as follows:</p> <ul> <li>Personal information: information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status.</li> <li>Motor vehicle record: any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.</li> </ul> <p>Furthermore, DPPA sets forth permissible uses under certain conditions. Pursuant to Minnesota Statutes, section 168.346, "data on an individual provided to register a vehicle shall be treated as provided [by DPPA] and shall be disclosed as required or permitted by that section." (Mr. Newton did not address how DPS can fulfill its obligation under this section to provide appropriate access to those data in light of DPS's security information declaration.)</p> <p>The Commissioner respectfully disagrees that DPPA applies to data item 1. License plate numbers entered into the Archive Service by local law enforcement officers are not protected by DPPA, because the officer gained access to the number by looking at the license plate on a vehicle, not from the Archive Service.</p> <p>Regarding data item 2), Mr. Bratlie wrote:</p> <p class="opinion_quote">The information protected by DPPA, and cited in Minn Stat section 168.346, is personal information. .... Thus, at a minimum, BCA has given no explanation for why the ACLU-MN was not entitled to information on zip codes, vehicular accidents, driving violations, and driver's status that would have been in the replies.</p> <p class="opinion_quote">The BCA has made an incorrect reading of Minn Stat section 168.346 which does permit them to share the data under the rules set up in the DPPA. .... DPPA permits information to be shared in 14 different scenarios. At least three of them apply here.</p> <p>Mr. Bratlie discussed the permissible uses that he believes apply to ACLU-MN's request. The Commissioner acknowledges his position. However, per DPPA, it is up to Commissioner Dohman to determine whether any of the permissible uses apply to Mr. Bratlie's request.</p> <p>Mr. Bratlie noted, and Mr. Newton concurred, that DPPA does not protect 5-digit zip codes. (In his comments, Mr. Newton stated, "[i]t is not clear what value zip codes have in determining whether racial profiling is occurring in Sibley County." Whether or not an entity believes public government data have "value" does not affect a person's access rights. See Minnesota Statutes, section 13.05, subdivision 12, and Minnesota Rules, part 1205.0300, subpart 2.)</p> <p>Mr. Newton also stated that even if DPS "provided ACLU-MN with the zip codes for the license plates queried by Sibley County in early 2012, those are the only data they would be entitled to receive under the DPPA."</p> <p>Mr. Newton also wrote:</p> <p class="opinion_quote">The ACLU-MN also argues that BCA is somehow required by language in Minnesota Statutes, section168.346 to produce the data it has requested. This argument has no merit; chapter 168 directs the commissioner of public safety to take certain actions. See section 168.002, subd. 5. While BCA reports to the commissioner of public safety, BCA's operation of the Archive Service is not controlled by section 168.346. As was stated in BCA's November response to ACLU-MN, the part of DPS that controls access under the DPPA is Driver and Vehicle Services Division.</p> <p>Minnesota Statutes, section 168.346, subdivision 1(a), provides: "[d]ata on an individual provided to register a vehicle shall be treated as provided by United States Code, title 18, section 2721, and shall be disclosed <em>as required or permitted</em> by that section." (Emphasis added.) The Commissioner respectfully disagrees with Mr. Newton's position that DVS makes that determination. As noted above, DPPA regulates disclosure of data by a <em>State department</em> of motor vehicles. Per section 168.346, the Commissioner of Public Safety must determine if DPPA requires or permits disclosure of the data ACLU-MN requested.</p> <p>As to data item 3), Mr. Bratlie wrote, "BCA claimed that there is no responsive data to this request. This reply makes no sense." Mr. Bratlie asserted that per the Joint Powers agreement, section 2.11, BCA should maintain the data. He wrote:</p> <p class="opinion_quote">As BCA stated they created the software for tracking "direct access" "indirect access" and "computer to computer interface. Direct Access is done when a deputy uses SCSO equipment, such as a squad car computer, to access the BCA systems, such as entering a license plate number. Under the joint powers agreement with SCSO, there must be a method in the software for identifying which individual officers at SCSO conducted a particular transaction.</p> <p class="opinion_quote">The BCA Data Inventory list confirms this as it requires BCA to have data showing who queried a BCA database and when that query happened. Even the determination form signed by Ramona L. Dohman states that information it holds will be shared with a criminal justice agency to discipline an employee who has misused the data system. Dohman stated that "resolution of allegations of misuse will promote public safety by helping to preserve the integrity of the criminal justice community." Thus, as required by the FBI, joint powers agreement and even as BCA policy, there is a way to determine which deputy made requests to the BCA for information.</p> <p>However, as noted above, Mr. Newton stated that BCA stores only the device identifier, not data that identify the officer who made the query. The joint powers agreement between the agency and BCA requires that the agency tell BCA which employee was using a mobile device at a particular date and time, if BCA determines "that information is needed to evaluate usage or resolve some other issue." Accordingly, neither DPS nor SCSO maintains all of the data that together are responsive to ACLU-MN's request.</p> <p>In summary, apparently ACLU-MN cannot get access to the data it seeks from DPS, because BCA does not maintain the data <em>by officer</em> conducting the query via a mobile device, which is what ACLU-MN asked for. It may want to ask again for aggregate data, including zip codes, not by officer.</p> <p>The Commissioner has an additional comment. Mr. Bratlie also asserted that the data he requested are public under Minnesota Statutes, section 13.82, subdivisions 6 (response or incident data) or 7 (inactive criminal investigative data):</p> <p class="opinion_quote">BCA is incorrect to argue that this information is private driver data. It is, after being sought by a deputy, investigative data which makes it available to the ACLU-MN. .... Upon commencing an investigation, even one based on racial animus, the deputy has created a search that is presumed to be public. While the investigation may be short - finding out whether or not the car belongs to a minority - the deputy has made both incident data and criminal investigation data....</p> <p>The Commissioner acknowledges Mr. Bratlie's position, but the problem here is that SCSO does not maintain the data in question. However, if, by virtue of running a license plate number query the local law enforcement officer creates response or incident or criminal investigative data, and those data are an official record for purposes of Minnesota Statutes, section 15.17, then the local law enforcement agency (here, SCSO) should maintain the data per Minnesota Statutes, section 138.17, and provide appropriate public access.</p> <p>Note: References to footnotes and exhibits omitted.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Bratlie is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Minnesota Department of Public Safety responded appropriately to a request for the following data, because it does not maintain the data:</p> <ul> <li>Data showing all license plate numbers run through Sibley County Sheriff patrol cars on-board computer system, by officer and date, from January 1, 2012 to May 31, 2012.</li> <li>Data showing the response to those Sibley County squad car license plate initiated requests.</li> <li>Data showing the total number of transactions requested, by officer, from January 1, 2012 to May 31, 2012.</li> </ul> <p>However, DPS may need to reconsider whether any of the data ACLU-MN requested are not system log files and/or audit trail data, and therefore are not subject to the security information declaration pursuant to section 13.37, subdivisions 1(a) and 2.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 11, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2678922663682663692663702022-04-22T17:49:23Z266258266282266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267172" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-03-20T01:14:43ZA city council held a meeting using Skype to include a council member at a remote location outside of Minnesota, meeting all requirements in section 13D.02. The council complied with section13D.02, because it used Skype as it might have used interactive television to conduct its meeting in a manner that allowed it to meet its obligations. Further, the plain language of the statute does not forbid a member of a public body from “attending” a public meeting at a location “open and accessible to the public” outside of the entity’s geographic area, as long as all other conditions of that section are met. March 19, 2013; City of Cohasset36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 6, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from David Decker, Finance Manager for the City of Cohasset, dated February 1, 2013. In his letter, Mr. Decker asked the Commissioner to issue an advisory opinion regarding the City Council of Cohasset's conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>A summary of the facts as provided by Mr. Decker follows:</p> <p class="opinion_quote">[The Cohasset City Council] recently held a City Council meeting utilizing Skype on the City's computer which was projected on a large screen television in the City Council Chambers in order to include a council member at a remote location outside the State of Minnesota. We followed the relevant state statute, Minnesota Statutes Section 13D.02, in preparing for this meeting</p> <p class="opinion_quote">We made sure that all members of the City Council could hear and see one another. Members of the public at the council's regular meeting location could see and hear all discussions, etc. There were four (4) members of the council at the regular meeting location. The council member at the remote location posted notice at that location and that location was accessible to the public. We also posted notice at the regular meeting location stating that a council member would be participating from a remote location. The member at the remote location did participate in the City Council proceedings, but all formal action which was taken at the meeting was passed with a unanimous vote, so the vote of the member at the remote location was not required for passage of any item.</p> <p>After the meeting, an article appeared in a local newspaper suggesting that the meeting violated the OML because the remote location of the member participating via Skype was not accessible to residents of Cohasset. <br /> <br /> Mr. Decker wrote, "[w]e continue to contend that the reference to 'the public' in the statute is not restricted to the residents of the City of Cohasset."</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Decker's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Cohasset comply with Minnesota Statutes, section 13D.02, when it held a meeting at which a city council member attended via Skype from a remote location?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13D.02, subdivision 1, states:</p> <p class="opinion_quote">A meeting governed by section 13D.01, subdivisions 1, 2, 4, and 5, and this section may be conducted by interactive television so long as:</p> <p class="opinion_quote">(1) all members of the body participating in the meeting, wherever their physical location, can hear and see one another and can hear and see all discussion and testimony presented at any location at which at least one member is present; <br /> (2) members of the public present at the regular meeting location of the body can hear and see all discussion and testimony and all votes of members of the body; <br /> (3) at least one member of the body is physically present at the regular meeting location; and <br /> (4) each location at which a member of the body is present is open and accessible to the public.</p> <p>The Commissioner has not had the occasion to opine on the meaning of "interactive television," as it is used in section 13D.02. However, the Commissioner has opined previously on other questions about use of technology as it relates to an entity's obligations under Minnesota Statutes, Chapter 13. The issue Mr. Decker raised is analogous. <br /> <br /> For example, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267815" title="00-043" target="_blank">Advisory Opinion 00-043</a>, the Commissioner was asked, pursuant to Minnesota Statutes, section 13.04, subdivision 4, what a government entity's obligation is to include a data subject's "statement of disagreement" regarding the accuracy and/or completeness of data when the entity discloses the data in dispute on its website. The Commissioner opined:</p> <p class="opinion_quote">Regarding data that exist in electronic form the Commissioner again recommends a common sense approach. The Commissioner's understanding of web-based technology is that in most situations when a document(s) or database is posted to a website, it is possible to create a link in that document or database directly to another document. This process seems akin to physically attaching a paper copy of a disagreement statement to a paper copy of data in dispute.</p> <p>Also, in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267322" title="97-049" target="_blank">97-049</a>, the Commissioner stated:</p> <p class="opinion_quote">The Commissioner is of the opinion that in the electronic age, a public employee's e-mail address is also part of the employee's work location. An employee's e-mail address simply provides another means, in a different medium, for the public to communicate with its government.</p> <p>See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267358" title="03-040" target="_blank">03-040</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267479" title="07-004" target="_blank">07-004</a> and <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-266661" target="_blank">11-006</a>.</p> Here, the Council used Skype, as it might have used interactive television, to conduct its meeting in a manner that allowed it to meet its obligations under section 13D.02. Further, the plain language of the statute does not forbid a member of a public body from "attending" a public meeting at a location "open and accessible to the public" outside of the entity's geographic area, as long as all other conditions of that section are met. <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Decker raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Cohasset complied with Minnesota Statutes, section 13D.02, when it held a meeting at which a city council member attended via Skype from a remote location, because the meeting met each of the four requirements in section 13D.02.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 19, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2671722671502025-11-10T22:02:39Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266956" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-03-19T14:14:43Z Each administrator of a Minnesota Veterans Home is a “public official” for purposes of section 13.43, subd. 2(e)(3), because under section 198.005, each administrator acts as the administrative head for his/her veterans home. March 19, 2013; Minnesota Department of Veterans Affairs36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 6, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Dennis M. Devereaux, legal analyst for the Minnesota Department of Veterans Affairs. In his letter, Mr. Devereaux asked the Commissioner to issue an advisory opinion regarding certain data that the Department maintains.</p> <p>Mr. Devereaux provided a summary of the facts as follows:</p> <p class="opinion_quote">The Minnesota Department of Veterans Affairs operates [five] Minnesota Veterans Homes Each Home has an Administrator, who is responsible for the 24/7 operation of the Home. Each Administrator is appointed and receives their authority to act under Minnesota Statutes section198.005 which states:</p> <p class="opinionquoteinquote">The commissioner shall appoint an administrator for each of the veterans homes. The administrators act as the administrative head for their respective veterans homes. The administrators serve at the pleasure of the commissioner and report directly to the commissioner.</p> <p><span class="opinion_quote">The question that we request an Advisory Opinion on is, whether an Administrator of a Minnesota Veterans Home is or is not a "Public Official".</span></p> <p class="opinion_quote">Minnesota Statute section13.43 Subdivision 2(e)(3) provides [that]executive or administrative head of departments, bureaus, divisions or institutions [are public officials]. We contend that a Minnesota Veterans Home is clearly an institution within the meaning of the Statute and that each Administrator is clearly the administrative head based upon their appointment and their authority to act.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Devereaux's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Is an Administrator of a Minnesota Veterans Home a "public official" for purposes of Minnesota Statutes, section 13.43, subdivision 2(e)(3)?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of, as well as applicants for, a government entity. Under Minnesota Statutes, section 13.43, certain personnel data are classified as either private or public, depending on whether the employee is or is not a "public official."</p> <p>Of relevance here, under section 13.43, subdivision 2(e)(3), the following public employees are considered to be public officials: "executive or administrative heads of departments, bureaus, divisions, or institutions within state government."</p> <p>Mr. Devereaux stated, "a Minnesota Veterans Home is clearly an institution within the meaning of the Statute and each Administrator is clearly the administrative head based upon their appointment and their authority to act." The Commissioner concurs. According to the plain language of section 13.43, subdivision 2(e)(3), each administrator of a Minnesota Veterans Home is a public official.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Devereaux raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>An Administrator of a Minnesota Veterans Home is a "public official" for purposes of Minnesota Statutes, section 13.43, subdivision 2(e)(3).</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 19, 2013.</p> <hr /> </td> </tr> </tbody> </table> </div>2669562668732022-01-18T19:23:10Z266258513961266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266427" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-03-19T10:14:43ZA member of the public requested a school district’s data practices access policies and procedures required by sections 13.025 and 13.03. The district replied that it did not maintain a single written document that details its public data access procedures, but that it follows the procedures set forth in statute. The district did not fulfill its obligation to produce a “written data access policy” that “is easily available to the public.” March 19, 2013; Independent School District 625 (St. Paul)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On December 12, 2012, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Tim Finnegan. In his letter, Mr. Finnegan asked the Commissioner to issue an advisory opinion regarding his requests for access to certain data from Independent School District (ISD) 625, St. Paul. IPAD asked for additional information, which Mr. Finnegan provided on January 31, 2013.</p> <p>In response to Mr. Finnegan's request, IPAD, on behalf of the Commissioner, wrote to Valeria Silva, Superintendent of ISD 625. The purposes of that letter, dated January 31, 2013, were to inform her of Mr. Finnegan's request and to ask her to provide information or support for the District's position. Nancy L. Cameron, Deputy General Counsel for the District, responded on February 25, 2013. A summary of the facts follows. Mr. Finnegan wrote in his opinion request:</p> <p class="opinion_quote">I am requesting your consideration in issuing an advisory opinion to the Saint Paul Public School District, ISD 625, for refusing to comply with Minnesota Statute 13.025, Subdivisions 1, 2, 3, and 4.</p> <p class="opinion_quote">I tried to get information from the school district's Executive Director of Human Resources, Tim Caskey on how to file a data request with ISD 625. Mr. Caskey referred me to Board Policy 304.00 which only states who the Responsible Authority is. Mr. Caskey went on to state that "Detailed procedures for access to public data do not exist in a single written document. Nevertheless, the District follows the procedures set out in Minn. Stat.13.03, subd. 3. ...."</p> <p>IPAD asked Mr. Finnegan to direct his data request to Valeria Silva, the superintendent for the District, before accepting his opinion request. (A person's rights under Chapter 13 are invoked when the person makes a request for access to government data to the responsible authority/designee of the government entity.) He did so on December 18, 2012.</p> <p>Mr. Finnegan provided the Commissioner a copy of Board Policy 304.00, which states that the responsible authority for the District is the superintendent, but does not identify Ms. Silva by name.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Finnegan's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 625, St. Paul, respond appropriately to a request for the District's data practices access policies and procedures required by Minnesota Statutes, sections 13.025 and 13.03?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 2(a) states, "[t]he responsible authority in every government entity shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner." Minnesota Rules, Chapter 1205 also provides guidance about access procedures for members of the public and data subjects.</p> A 2012 legislative change moved some of the requirements for data practices policies and procedures formerly located at Minnesota Statutes, sections 13.03 and 13.05, to a new section, Minnesota Statutes, section 13.025. Of relevance here, section 13.025, subdivision 2, requires: <p class="opinion_quote">The responsible authority shall prepare <em>a written data access policy</em> and update it no later than August 1 of each year, and at any other time as necessary to reflect changes in personnel, procedures, or other circumstances that impact the public's ability to access data. [Emphasis added.]</p> <p>Subdivision 4 provides:</p> <p class="opinion_quote">The responsible authority shall make copies of the policies required under subdivisions 2 and 3 <em>easily available to the public</em> by distributing free copies to the public or by posting the policies in a conspicuous place within the government entity that is easily accessible to the public or by posting it on the government entity's Web site. [Emphasis added.]</p> <p>In her comments to the Commissioner, Ms. Cameron wrote that Mr. Caskey, in response to Mr. Finnegan's request for the written data access policy required per section 13.025, subdivision 2, wrote to Mr. Finnegan in August, 2012:</p> <p class="opinion_quote">You have asked for copies of the District's procedures, as defined by Minn. Stat. section13.03, subds. 2(a)-(b). The District has designated the Responsible Authority to be the Superintendent. See Board Policy 304.00. You can obtain Board Policy 304.00 at [website address].</p> <p class="opinion_quote">Detailed procedures for access to public data do not exist in a single written document. Nevertheless, the District follows the procedures set out in Minn. Stat. section13.03, subd. 3. In addition, pursuant to District practice, if data is requested, the requester must put the request in writing and send it to the Responsible Authority. Sometimes, requesters send data requests directly to District personnel - e.g., to the Director Office [sic] of Communications, Executive Director of Human Resources, General Counsel, etc. The Responsible Authority or other person assigned to respond to the request, complies with [Minnesota Statutes, Chapter 13] by following the procedures in Minn. Stat. section13.03, subd. 3 and by responding to the request within a reasonable time. If clarification is needed, clarification is sought from the requester. If no clarification is needed, the District typically invites the requester to inspect the data, if public, or informs the requester that the data is not public and the legal reason for that conclusion. If copies or electronic transmittal are requested after inspection, the District requires the requesting person to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data or the data. However, if 100 or fewer pages of black and white, letter or legal size paper copies are requested, the District charges 25 cents for each page copied. If the District is not able to provide copies at the time a request is made, copies are supplied as soon as reasonably possible.</p> <p>Ms. Cameron wrote to the Commissioner:</p> <p class="opinion_quote">These written procedures provided by the Executive Director of Human Resources accurately describe how the District handles requests for data under [Chapter 13] and meet the requirements of the law. They (1) were in writing, (2) provided the specific procedures used by the District for access by data subjects to public or private data on individuals, and (3) were distributed for free to [Mr.] Finnegan, as a member of the public. ....</p> <p>The Commissioner has previously opined on the statutory provisions requiring access procedures (see Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266355" title="94-002" target="_blank">94-002</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267246" title="04-049" target="_blank">04-049</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266477" title="05-003" target="_blank">05-003</a>). Here, Mr. Finnegan requested the procedures required by sections 13.025 and 13.03 from the District. According to Ms. Cameron, Mr. Caskey's response (reproduced in its entirety above) complied with the District's obligations under section 13.025. The Commissioner respectfully disagrees. Mr. Caskey's response to Mr. Finnegan did not fulfill the District's obligation to produce a "written data access policy" that "is easily available to the public."</p> <p>Furthermore, it ought not to be difficult for members of the public to identify a government entity's responsible authority. The statement in the District's Policy 304.00, that the superintendent is the responsible authority, does not comply with the requirement under statute and rule that the District appoint a specific individual as responsible authority, and so identify that individual in the public document required. (See section 13.025, subdivision 1, and Minnesota Rules Part 1205.1200, subpart 2.)</p> <p>Note: References to footnotes and exhibits omitted.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Finnegan raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Independent School District 625, St. Paul, did not respond appropriately to a request for the District's data practices access policies and procedures required by Minnesota Statutes, sections 13.025 and 13.03.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 19, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2664272664262023-11-02T14:13:30Z266258513982266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267312" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-03-06T02:14:43ZNote: this opinion relates to 13-001. A member of the public sought access to data related to a request for proposal (RFP) under section 13.591, subd. 3(b) and 4(a). The entity cancelled procurement for the original contract prior to completion of the evaluation process, and three weeks later, re-solicited two new RFPs for the project. Although the entity plans to issue more RFPs in connection with the project, the evaluation process for the two re-solicited RFPs is complete, and all data submitted in response to the original RFP are now public (except trade secret) under section 13.591, subd. 3(b). For the same reasons, “evaluative data,” are also public, pursuant to section 13.591, subd. 4(a), except trade secret data.March 5, 2013; Metropolitan Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On January 14, 2013, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Patrick P. Born, Regional Administrator and responsible authority for the Metropolitan Council. In his letter, Mr. Born asked the Commissioner of Administration to issue an advisory opinion regarding the classification of certain data the Council maintains. Jay R. Lindgren and Leita Walker, attorneys, submitted comments on behalf of URS and Star Tribune Media Company, LLC, respectively.</p> <p>Note: Data at issue here were also the subject of Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267196" title="13-001" target="_blank">13-001</a>.</p> <p>A summary of the facts as Mr. Born provided them follows. In his opinion request, Mr. Born wrote: <br /></p> <p class="opinion_quote">On October 21, 2011, the Council issued a Request for Proposals ( RFP ) for engineering services for the [Southwest Light Rail Transit] SWLRT line. Under that solicitation the Council would have awarded a consultant contract ( Contract No. 11P173 ) encompassing five phases of engineering and support services....</p> <p>URS was one of two firms that submitted proposals. Mr. Born described ensuing events, and stated that the Council voted in July, 2012, to cancel the procurement for Contract 11P173, and inter alia, "[d]evelop and issue new Requests for Proposals for Engineering Services Consultant(s) for developing engineering documents to 30% completion of project engineering." He wrote:</p> <p class="opinion_quote">On August 17, 2012, the Council issued two new RFPs for preliminary engineering consultant services for the SWLRT Project. .... The Council has not yet issued a "new RFP for engineering services to complete final design work and provide design support services during construction," and therefore has not resolicited new proposals for those phases of the engineering work.</p> <p class="opinion_quote">The last three phases of engineering services that are not covered by Contract Nos. 12P176 and 12P177 will be the subject of one or more RFPs which will be issued as initial design work nears completion.</p> <p class="opinion_quote">.... The two contracts cover only the first two phases (30% preliminary engineering) of the five phases that were the subject of the RFP for Contract No. 11 P173. Both preliminary engineering services contracts were signed on or about December 17, 2012. [URS submitted a proposal in response to the resolicitations but was not awarded a contract for those services.]</p> <p>Mr. Born stated that the evaluation process for Contract No. 11 P173 was not completed, because the Council cancelled that procurement and has not yet re-solicited proposals for the last three phases of that RFP. Furthermore, because the Council did not re-solicit those proposals within one year, "the Council believes the proposals (except for any trade [secret] information) and the "remaining data" associated with that solicitation (including data created or maintained by the Council as part of its proposal evaluation processes) now are public."</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Born's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, section 13.591, what is the classification of the following data maintained by the Metropolitan Council?</p> <ul> <li>the Request for Proposal (RFP) and procurement process data for Contract No. 11P173</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.591, subdivision 3(b), provides:</p> <p class="opinion_quote">Data submitted by a business to a government entity in response to a request for proposal are private or nonpublic until the responses are opened. Once the responses are opened, the name of the responder is read and becomes public. All other data in a responder's response to a request for proposal are private or nonpublic data until completion of the evaluation process. For purposes of this section, "completion of the evaluation process" means that the government entity has completed negotiating the contract with the selected vendor. After a government entity has completed the evaluation process, all remaining data submitted by all responders are public with the exception of trade secret data as defined and classified in section 13.37. ....</p> <p class="opinion_quote">If all responses to a request for proposal are rejected prior to completion of the evaluation process, all data, other than that made public at the response opening, remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process or a determination is made to abandon the purchase. If the rejection occurs after the completion of the evaluation process, the data remain public. If a resolicitation of proposals does not occur within one year of the proposal opening date, the remaining data become public.</p> <p>According to section 13.591, subdivision 4(a), "[d]ata created or maintained by a government entity as part of the selection or evaluation process referred to in this section are protected nonpublic data until completion of the selection process or completion of the evaluation process at which time the data are public with the exception of trade secret data as defined and classified in section 13.37."</p> <p>In his comments to the Commissioner, Mr. Lindgren wrote:</p> <p class="opinion_quote">The Met Council decided to break the procurement for the five phases of engineering for the Southwest Light Rail into multiple contracts. However, it did not abandon the purchase and, as the Commissioner noted in Advisory Opinion 13-001, "the project that is the subject of the RFPs is unchanged." ....</p> <p class="opinion_quote">URS's proposal submitted a single proposal for all five phases of the work. It will not be public data until the Met Council has completed the evaluation process and awarded contracts for all five phases of the work that was originally to be included in Contract 11P173.....</p> <p class="opinion_quote">.... The classification of the evaluation data is governed by [section 13.591], [s]ubdivision 4(a), which requires that the data be kept as protected nonpublic data until the evaluation process is complete. It can only be released, therefore, once the Met Council has completed the procurement process for the entire purchase by entering into contracts for all five phases of the engineering work.</p> <p>In her comments to the Commissioner, Ms. Walker wrote in opposition to URS's position:</p> <p class="opinion_quote">It simply is not consistent with legislative intent, the policy of government transparency underlying [Chapter 13], or the plain language of Minn. Stat. 13.591, subd. 3(b), to hold that a government entity could request proposals on a large, multi-million dollar contract, receive proposals, cancel the contract, and then, over the course of months or even years, carve out smaller RFPs that cover bits and pieces of the canceled contract, all the while keeping the original, rejected bids away from public scrutiny.</p> <p class="opinion_quote">URS's argument that the data at issue are nonpublic because the Council has not abandoned the SLRT [sic] project is overly simplistic. Proposals for the last three phases of work were not resolicited within the one-year time frame, and thus URS's original proposal on this work is public.</p> <p class="opinion_quote">It should not matter that the Council may <em>intend</em> to eventually resolicit proposals for these three phases: The statute does not contain an "intent" exception [Emphasis provided.]</p> <p>To summarize, in 2011 the Council issued an RFP for contract No. 11P173 and received two responses, one of them from URS. Subsequently, the Council canceled procurement of that contract, and within one year, re-solicited the RFP, as Contract Nos. 12P176 and 12P177. According to Mr. Born, the Council has completed the evaluation process (i.e., it has signed the contracts) for those two RFPs.</p> <p>Mr. Born, Mr. Lindgren and Ms. Walker all discussed the fact that the subsequent two RFPs do not cover the entire scope of the original RFP, and expressed differing views on whether that is significant in terms of the classification of the data at issue. Mr. Born believes the data are public because although the Council did not complete the evaluation process for three of five phases of the SWLRT, it did not re-solicit proposals within one year of the proposal opening date. Mr. Lindgren argues that the data are classified as not public because the Council has not completed the evaluation process for the entire SWLRT project. Ms. Walker argued that the Commissioner erred in his conclusions in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267196" title="13-001" target="_blank">13-001</a>, but also asserted the data are public because the Council failed to re-solicit within the one-year time frame.</p> <p>The Commissioner acknowledges each analysis, but respectfully disagrees with all of them. Under section 13.591, subdivision 3(b), any differences between an original RFP and re-solicited RFPs do not affect the classification of the data. As the Commissioner stated in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267196" title="13-001" target="_blank">13-001</a>, "[g]iven the process set forth in section 13.591, it is clear that the Legislature contemplated that aspects of public projects could change and necessitate re-solicitation of RFPs, and that is the case here."</p> <p>Under the plain language of the statute, in the case of a re-solicitation, "all data [with exceptions] remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process " When the evaluation process is complete, "<em>all remaining data</em> [except trade secret] submitted by all responders are public." (See section 13.591, subdivision 3(b); emphasis added.)</p> <p>Here, the RFP for Contract No. 11P173 was re-solicited as two RFPs. Accordingly, the evaluation process for the two re-solicited RFPs is complete, and therefore, all data (except trade secret) submitted to the Council in response to the RFP for Contract No. 11P173 are now public under section 13.591, subdivision 3(b), even though the Council intends to issue more RFPs in connection with the SWLRT.</p> <p>For the same reasons, "evaluative data," i.e., data the Council created or maintains as part of the evaluation process for Contract No. 11P173, are also public, pursuant to section 13.591, subdivision 4(a), except trade secret data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Born raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, section 13.591, the following data maintained by the Metropolitan Council are public (except for any trade secret data under Minnesota Statutes, section 13.37):</p> <ul> <li>the Request for Proposal (RFP) and procurement process data for Contract No. 11P173</li> </ul> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 5, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2673122666782022-01-18T19:23:10Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267339" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-03-05T16:14:43ZAn entity asked about the classification of grades and GPAs on undergraduate and graduate transcripts provided to the entity. Section 13.43, classifies “education and training background” data as public, but does not define “education and training background.” Previous opinions have addressed the scope of those terms only as it relates to dates, specific institutions of learning, and places of employment. Using common dictionary definitions, grades and GPAs are not “education and training background.” A specific grade or GPA is not part of the general education and training background of an employee or applicant and does not describe the knowledge, development, or experience that an applicant or employee has achieved. Accordingly, those data are private. March 5, 2013; Independent School District 47 (Sauk Rapids-Rice)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On January 23, 2013, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Daniel Bittman, Superintendent of Independent School District 47, Sauk Rapids-Rice, dated January 22, 2013. In his letter, Mr. Bittman asked the Commissioner to issue an advisory opinion regarding certain data that the District maintains. IPAD asked for additional information, which the District provided on February 1, 2013.</p> <p>Mr. Bittman provided a summary of the facts as follows:</p> <p class="opinion_quote">On January 16, 2013, a community member requested, a complete copy of the transcripts the school district maintains for each middle and high school math and science teacher. More specifically, the community member requested grades teachers received in each course, as well as grade point averages [GPAs].</p> <p class="opinion_quote">Minnesota Statute 13.43, Subd. 2 identifies public data such as, but not limited to name, employee identification number, salary, <em>education and training background</em>, and dates of employment. However, it does not specify whether education and training background includes course grades and/or grade point average. [Emphasis provided.]</p> <p>Under Minnesota Statutes, section 13.072, subdivision 4, the District provided the Commissioner with a copy of a transcript to review.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Bittman's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, what is the classification of the following personnel data maintained by Independent School District 47, Sauk Rapids-Rice?</p> <ul> <li>undergraduate and graduate transcripts of certain teachers including grades and grade point averages</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of, as well as applicants for, a government entity. Subdivisions 2 and 3 list the types of personnel data that are public, which include "education and training background." Subdivision 4 classifies most other types of personnel data as private.</p> <p>Section 13.43 does not define "education and training background," and in previous opinions, the Commissioner has addressed the scope of those terms directly only as it relates to dates, specific institutions of learning, and places of employment. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267737" title="94-022" target="_blank">94-022</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267527" title="95-001" target="_blank">95-001</a>.)</p> <p>Where terms are not defined, they are interpreted according to their common and approved usage. (See Minnesota Statutes, section 645.08.) Merriam-Webster defines "education" as, "the knowledge and development resulting from an educational process"; "training" as, "the skill, knowledge, or experience acquired by one that trains"; and "background" as, "the total of a person's experience, knowledge, and education." Using those common definitions, the Commissioner is of the opinion that grades and grade point averages are not "education and training background." A specific grade or GPA is not part of the general education and training background of an employee or applicant and does not describe the knowledge, development, or experience that an applicant or employee has achieved.</p> <p>Mr. Bittman wrote:</p> <p class="opinion_quote">The District believes that providing transcripts, which identify information such as degrees obtained and university(s) attended is considered to be public data. However, the District does not believe information related to specific course grades and/or grade point averages is included.</p> <p>The Commissioner concurs with the District that that it must redact grades and/or GPAs from transcripts.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Bittman raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, the following personnel data maintained by Independent School District #47, Sauk Rapids-Rice, are classified as private: grades and grade point averages.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 5, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2673392665832022-01-18T19:23:10Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267180" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-02-12T16:14:43ZA member of the public asked for access to data related to the departure of a director in a city, pursuant to 2012 amendments to section 13.43, subdivision 2(e)(iii). Although the director worked in a management capacity for the city, which has a population of more than 7,500, he did not report to “the chief administrative officer or the individual acting in an equivalent position.” Therefore, under the plain language of section 13.43, subdivision 2(e)(iii), he is not a public official, and neither are the City’s police and fire chiefs, among others in City management positionsFebruary 12, 2013; City of Minneapolis36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: Subsequent to this opinion the Legislature amended Minnesota Statutes, section 13.43, subdivision 2(e)(4)(iii), to broaden the public official employees that are described in that provision. </strong></p> <div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On December 17, 2012, the Information Policy Analysis Division (IPAD) received a letter dated December 11, 2012, from Leita Walker, on behalf of Star Tribune Media Company, LLC. In her letter, Ms. Walker asked the Commissioner to issue an advisory opinion about her client's right to gain access to certain data the City of Minneapolis maintains. IPAD wrote to Ms. Walker that the Commissioner would accept her request as of January 9, 2013. <br /> <br /> IPAD, on behalf of the Commissioner, wrote to Casey Joe Carl, City Clerk, in response to Ms. Walker's request. The purposes of this letter, dated January 17, 2013, were to inform him of Ms. Walker's request and to ask him to provide information or support for the City's position. On January 30, 2013, IPAD received a response from Peter Ginder, Deputy City Attorney, Civil Division.</p> <p>A summary of the facts as Ms. Walker provided them follows. On August 17, 2012, a Star Tribune reporter asked the City for "documents associated with a complaint or charge made against Greg Stubbs, including, but not limited to, any investigation of a complaint or charge." According to Ms. Walker, there was a complaint pending against Mr. Stubbs at the time of his "recent departure" as the City's regulatory services director.</p> <p>On August 30, 2012, the City Attorney's Office wrote in response to Star Tribune's data request that the City did not impose final discipline on Mr. Stubbs, and further wrote:</p> <p class="opinion_quote">Although Mr. Stubbs works in a management capacity for the City of Minneapolis, which has a population of more than 7,500, he does not report to the chief administrative officer or the individual acting in an equivalent position.</p> <p class="opinion_quote">....</p> <p class="opinion_quote">Mr. Stubbs does not meet the definition of a public official under [Minnesota Statutes,] section 13.43, subdivision 2(e)(4)(iii) because as Director of Regulatory Services he did not report directly to the chief administrative officer (a position that does not exist in the City of Minneapolis) or an individual acting in an arguably equivalent position (the City Coordinator). As a result, Mr. Stubbs is not a public official as defined by section 13.42 [sic], subdivision 2(e). The data you seek is therefore private personnel data under 13.43, Subd. 4, and may not be disclosed.</p> <p>Ms. Walker discussed in-depth the structure of Minneapolis City government, as well as that of the other five largest cities in Minnesota, and asserted that Mr. Stubbs should be considered a public official for purposes of section 13.43. She wrote:</p> <p class="opinion_quote">Under the City's interpretation of Minn. Stat. section13.43 subd. 2(e)(4), the following individuals are <em>not</em> public officials and complaint data about them is <em>private</em>:</p> <p class="opinion_quote">- City Assessor <br /> - City Attorney <br /> - Fire Chief <br /> - Police Chief <br /> - Director of the Department of Civil Rights <br /> - Director of the Department of Community Planning Economic Development <br /> - Director of the Department of Health and Family Support <br /> - Director of Public Works <br /> - Director of Regulatory Services <br /></p> <p class="opinion_quote">Meanwhile, individuals such as the heads of Emergency Management, the Minneapolis Convention Center, and the City's human resources department are public officials. [Emphasis provided.]</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Walker's opinion request, the Commissioner agreed to address the following issue::</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the City of Minneapolis respond properly to a request for data related to a complaint/charge against a city employee?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on current and former public employees. Certain personnel data are public and all other personnel data are private. (See section 13.43, subdivisions 2 and 4.) The existence and status of a complaint or charge against an employee are public. If an entity disciplines an employee, the final disposition, the specific reasons for and data documenting the basis of the discipline become public. (See section 13.43, subdivision 2(a)(4) and (5).)</p> <p>However, section 13.43, subdivision 2(e), provides:</p> <p class="opinion_quote">Notwithstanding paragraph (a), clause (5), and subject to paragraph (f), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.</p> <p>In 2012, the Minnesota Legislature amended section 13.43, subdivision 2(e), by expanding the definition of "public official." Of relevance here, "public official" now includes, in cities like Minneapolis with populations greater than 7, 500, "individuals in a management capacity reporting directly to the chief administrative officer or the individual acting in an equivalent position." (Section 13.43, subdivision 2(e)(4)(iii).)</p> <p>Subdivision 2(f), provides:</p> <p class="opinion_quote">Data relating to a complaint or charge against an employee identified under paragraph (e), clause (4), are public only if:</p> <p class="opinion_quote">(1) the complaint or charge results in disciplinary action or the employee resigns or is terminated from employment while the complaint or charge is pending; or</p> <p class="opinion_quote">(2) potential legal claims arising out of the conduct that is the subject of the complaint or charge are released as part of a settlement agreement with another person.</p> <p>On September 27, 2012, Ms. Walker asked the City to reconsider its position on whether Mr. Stubbs was a public official, given that he reported to the Executive Committee, which oversees both the City Coordinator and the Director of Regulatory Services. Ms. Walker wrote to the Commissioner:</p> <p class="opinion_quote">Star Tribune argued in its letter that the "equivalent" language in section 13.43 subd. 2(e)(4)(iii) should be read to mean equivalent or "more than equivalent." In other words, public officials should include individuals who report to (1) the chief administrative officer, (2) the equivalent of that position (arguably the City Coordinator), and/or (3) individuals to whom the "equivalent position" reports (the Mayor, the President of the City Council, etc.).</p> <p>In his comments to the Commissioner, Mr. Ginder also discussed the structure of Minneapolis's government. He wrote:</p> <p class="opinion_quote">The Star Tribune argues that if the City Coordinator is the "equivalent" of a chief administrative officer, and both the City Coordinator and the Director of Regulatory Services report directly to the Executive Committee, then both the City Coordinator and the Director of Regulatory Services should be "public officials." Additionally, the Star Tribune argues that its interpretation meets the perceived spirit and intent of section 13.43, subdivision 2(e)(4)(iii). .</p> <p class="opinion_quote">Simply stated, the Executive Committee does not have the broad administrative duties of the City Coordinator and does not act in a position equivalent to a chief administrative officer. By its charter, the City has created the position of city coordinator and given that position the duties of a chief administrative officer. Although every department head may not report to the city coordinator, many do.</p> <p class="opinion_quote">Stated another way, if the legislature had intended to capture all department heads appointed by a city as a "public official", it could have simply stated so as it did in the case of state agencies, departments, bureaus, boards, commissions and institutions (See Minn. Stat. section 13.43, subdivision 2( e), clauses (1), (2) and (3)) or as it did when it identified specific positions in school districts (Minn. Stat. section13.43, subdivision (2)(e)(iv)). Under the plain language of the statute, only certain management positions are considered "public officials". As described above, the duties and responsibilities of the city coordinator clearly are those of a chief administrative officer or the individual acting in an equivalent position and Stubbs did not report to the City Coordinator.</p> <p>Pursuant to Minnesota Statutes, section 645.16, "[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of law shall not be disregarded under the pretext of pursuing the spirit." Here the plain words of the statute are unambiguous. Under Minneapolis's structure, Mr. Stubbs is not a public official, for purposes of Minnesota Statutes, section 13.43, subdivision 2(e)(iii), just as its police and fire chiefs, etc., are not. <br /> <br /> The Commissioner acknowledges Ms. Walker's analysis regarding legislative intent, and that, in light of the strong legislative policy of public accountability that underlies much of Chapter 13, this may appear as a puzzling result. However, it is the result dictated by statute.</p> <p>The Commissioner has an additional comment. Section 13.43, subdivision 2(f), provides that if a complaint or charge against a local public official does not result in disciplinary action, then data relating to the complaint or charge are public only if the employee resigns or is terminated from employment <em>while the complaint or charge is pending</em>.</p> <p>Star Tribune stated that a complaint or charge was pending against Mr. Stubbs at the time he resigned. The City stated that it did not impose "final discipline" on Mr. Stubbs, but in the record before the Commissioner, it did not state clearly whether or not there was a pending complaint or charge at the time he left City employment. (The existence and status of any complaints or charges are classified as public under section 13.43, subdivision 2(a)(4).) Therefore, it is possible that the data the Star Tribune requested might not be public even if Mr. Stubbs were a public official for purposes of this section.</p> <p>(Note: all footnotes and references to exhibits omitted.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Ms. Walker is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the City of Minneapolis responded properly to a request for data related to a complaint/charge against a city employee.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: February 12, 2013.</p> <hr /> &gt;</td> </tr> </tbody> </table> </div>2671802668732022-01-18T19:23:08Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267963" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-01-23T16:14:43ZA member of the public asked whether an entity responded appropriately to a request for property inspection data. The requester made her original request in December of 2011, after which the entity stated that she had received all data related to that request. She subsequently received data she considered responsive to that request in June 2012. Due to the nature of the correspondence between the requester and the entity, the Commissioner was unable to come to a conclusion as to whether the entity responded appropriately, though it appeared it acted in good faith throughout the communications.January 23, 2013; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On November 30, 2012, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Cynthia Charest, dated the same. In her letter, Ms. Charest asked the Commissioner to issue an advisory opinion regarding certain data that the City of Minneapolis maintains. IPAD asked for additional information, which Ms. Charest provided on December 7, 2012.</p> <p>In a letter dated, December 7, 2012, the Commissioner offered Casey Joe Carl, Minneapolis City Clerk and data practices responsible authority, an opportunity to comment. IPAD received Mr. Carl's response on December 28, 2012.</p> <p>A summary of the facts follows. Ms. Charest wrote in her opinion request:</p> <p class="opinion_quote">On Dec 14, 2011, I emailed a data request to Mr. Craig Steiner, [former] Responsible Authority for the City of Minneapolis, regarding a 2009 inspection,: Under the Minnesota Government Data Practices Act, Please provide any and all public data for the following (inspection) RFS: 09-0730373.</p> <p class="opinion_quote">On Dec 14th, 2011, I received computer screen-shots but no inspection data from Regulatory Services.</p> <p class="opinion_quote">On December 16, 2011, Craig Steiner, Responsible Authority for the City of Minneapolis, stated that I had received all the data associated with the request.</p> <p><span class="opinion_quote">I believe that further data was available pursuant to my 12/14/11 data request to the City of Minneapolis because:</span> <br /></p> <ul> <li class="opinion_quote">On June 15th of 2012, further data was released to me by Mr. Steiner regarding RFS 09-0730373: specifically, a form signed by an inspector, showing that a housing inspection had been completed on 10-29-09 under RFS 09-0730373. As well as letters to the owner and tenants, showing that in Oct of 2009, Regulatory Services was planning on conducting an inspection on the property.</li> <li class="opinion_quote">I was not told that this data had been classified as confidential or private prior to its release in June of 2012. Or given reason under Chapter 13 why it would have been classified as private or confidential prior to its release in June of 2012.</li> </ul> <hr /> <h2>Issue:</h2> <p>Based on Ms. Charest's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did the City of Minneapolis respond properly to a request for housing inspection data?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Although the Legislature did not define reasonable time, the Commissioner has stated in previous opinions that it is relative to the amount of data requested. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267434" title="95-006" target="_blank">95-006</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267700" title="97-005" target="_blank">97-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267325" title="04-027" target="_blank">04-027</a>.) <br /> <br /> Further, previously issued advisory opinions have established that, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access (see section 13.03 subdivision 3(f)), or inform the requester that the data do not exist (see Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267776" title="00-017" target="_blank">00-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267983" title="02-017" target="_blank">02-017</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267846" title="08-026" target="_blank">08-026</a>). <br /> <br /> In this instance, on December 14, 2011, Ms. Charest requested data for an inspection conducted in 2009. On the same day, the City responded by providing computer screen shots related to the request. The City followed up two days later stating that it had provided Ms. Charest with all data responsive to her request. On June 15, 2012, Ms. Charest received additional data related to the 2009 inspection</p> <p>In the City's response, Mr. Carl wrote:</p> <p class="opinion_quote">In the present case, Ms. Charet [sic] filed 16 requests (identified in attached spreadsheet as requests A-P) for data or clarification, all of which were regarding the same issue, but which sought different specific information. Ms. Charet requested data from a variety of sources throughout the City, and as her understanding of the City's system grew, so did the detail of her requests. [Craig Steiner, former responsible authority] worked to fulfill all requests made by Ms. Charet and worked with staff from throughout the City to do so. As can be seen in emails contained in Exhibit 2, at times Ms. Charet's understanding about what was contained within the record was limited, necessitating Mr. Steiner and other City staff to explain an increasing and diversifying array of City programs and processes. Ultimately, much of the data Ms. Charet requested did not exist within the KIVA system, and therefore could not be provided to her. However, at all points during the process, any requested information available to the City staff was provided to Ms. Charet. Any supplemental data provided to Ms. Charet throughout the process, was either not available at the time of the initial request, or was provided as a result of a different type of request.</p> <p>The record of correspondence between Ms. Charest and the City is lengthy and involves a number of individuals at the City. It is not always clear when Ms. Charest was making a new request and when she is asking for clarification of a previous request. Ms. Charest requested "all" data related to the 2009 inspection. The City responds that any additional data provided to Ms. Charest was either unavailable at the time of the request or provided as a result of the ongoing communication and clarification between Ms. Charest and the City. There continued to be ongoing correspondence between Ms. Charest and the City throughout December 2011 and the fall of 2012.</p> <p>Based on the nature of the communication between Ms. Charest and the City and the record available, the Commissioner is unable to determine whether the City's response was appropriate. However, the record demonstrates that the City seemingly acted in good faith and was in near-constant communication with Ms. Charest.</p> <p>This is an opportunity for the Commissioner to remind data requesters and government entities that both play a role in the resolution of data requests. Where a data request is perhaps confusing or overly-broad, a government entity should seek clarification from the data requester as soon as possible (see Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">01-075</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267593" title="04-066" target="_blank">04-066</a>) and where possible provide information for the data requester to make a more specific, focused request. Likewise, the data requester should provide that clarification in a timely manner. By doing so, the entity and the requester ensure that requests will be reasonably made and fulfilled.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Charest raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Because of the nature of the correspondence between the City and the data requester, the Commissioner is unable to determine whether the City responded properly to a request for inspection data, despite the City's good faith effort to respond.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 23, 2013.</p> <hr /> </td> </tr> </tbody> </table> </div>2679632022-01-18T19:23:08Z266258266293266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267211" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-01-14T16:14:43ZA member of the public asked whether an entity responded properly to a request for certain personnel data it maintained. The requester asked for copies of the job application and supplement of a current employee. The entity responded by creating a list of public data elements but did not make copies of the actual documents. The entity did not respond appropriately; it should have provided access to the actual data after redacting not public portions of the documents. The plain language of section 13.03, subdivision 3, states that requesters “shall be permitted to inspect and copy public government data.” January 14, 2013; Scott County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On November 9, 2012, the Information Policy Analysis Division (IPAD) received an advisory opinion request from Michelle Boeck, dated November 8, 2012. In her letter, Ms. Boeck asked the Commissioner to issue an advisory opinion regarding certain data that Scott County maintains. IPAD asked for additional information, which Ms. Boeck provided on November 26, 2012.</p> <p>In letters dated, December 4, 2012, the Commissioner offered Gary Shelton, Scott County Administrator and responsible authority, and the data subject, an opportunity to comment. Jeanne Andersen, Assistant Scott County Attorney, responded on behalf of the County on December 14, 2012. The data subject did not respond.</p> <p>A summary of the facts follows. Ms. Boeck wrote in her opinion request:</p> <p class="opinion_quote">On or around February 21, 2012 I first requested copies of all public personnel data on the application and application supplement for [X]. From February 21, 2012 to June 25, 2012, I contacted several Scott County employees, by email, including the subject of the data, to try to obtain copies of the requested data.</p> <p>In the County's response to Ms. Boeck's opinion request, Ms. Andersen wrote:</p> <p class="opinion_quote">The request in question asked for all the public data regarding a specific applicant for a specific employment position within the County. The County responded by providing listed data and did not provide copies of any actual documents maintained in the applicant file.</p> <p class="opinion_quote"> </p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Boeck's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, did Scott County respond appropriately to a data request for copies of public personnel data from an employment application and application supplement by providing the requester with a list of data instead of copies of the actual data?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of, as well as data on applicants for, a government entity. Subdivision 2, lists the types of personnel data that are public, including job description, education and training background, and previous work experience. Subdivision 3, classifies certain data about applicants as public including veteran status, relevant test scores, rank on eligible list, job history, education and training, and work availability. Subdivision 4, classifies most other types of personnel data as private.</p> The Commissioner has opined in numerous opinions that data requesters are entitled to access the actual data that they are requesting. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267737" title="94-022" target="_blank">94-022</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267527" title="95-001" target="_blank">95-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267694" title="04-021" target="_blank">04-021</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267541" title="12-009">12-009</a>.) <dl> <dd>In Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267866" title="04-031" target="_blank">04-031</a>, the Commissioner wrote:</dd> <dd><br /></dd> </dl> <p class="opinion_quote">[Minnesota Statutes,] Section 13.03, subdivision 3, states that individuals shall be permitted to inspect and copy public government data. This means that when an individual asks to inspect public data, the entity shall provide the requestor with the actual data. This ensures that the requestor will be able to gain an understanding of the context relating to the data s/he is seeking, especially if the entity has redacted (blacked/whited out) surrounding data.</p> <p class="opinion_quote">The Commissioner is aware that some entities might prefer to lift public data from a document and place those data on an otherwise blank document for the individual to inspect (cut-and-paste). This is problematic because (1) the entity is withholding the actual data and (2) the possibility exists that the entity will make an error transferring the data from its original source onto another document.</p> <p>In response to Ms. Boeck's request for copies of public data in an applicant's application and application supplement, the County provided Ms. Boeck with a list of data elements it determined to be public under section 13.43, subdivisions 2 and 3, instead of providing redacted copies of the application and application supplement.</p> <p>Ms. Andersen wrote:</p> <p class="opinion_quote">The County bases its actions on the Minnesota Court of Appeals holding in <em>Demers v. City of Minneapolis,</em> 438 N.W.2d 828 (Minn. App. 1992). In that case, the Court specifically held, that while certain pieces of personnel data from or about a complaint against an employee were public, "the statute does not compel disclosure of the complaint itself." As such, forms containing public data were specifically recognized as private personnel data under Minn. Stat. section13.43 and deemed not subject to disclosure; only information about the form in general and specific data items are public.</p> <p>The <em>Demers</em> case involved a data requester seeking access to complaint forms about alleged police officer misconduct, arguing, in part, that the data were classified as public under Minnesota Statutes, section 13.82, subdivision 5 (now, subdivision 7). The Court held that the data were more properly classified as personnel data, under section 13.43. The Court's holding specifically addressed the narrow issue of the classification of and access to the actual complaint forms:</p> <p class="opinion_quote"><em>Complaint forms</em> and other data created during an internal investigation into the use of force by a police officer are private personnel data unless disciplinary action is taken against the officer. (Emphasis added.) <em>Demers</em> at 832.</p> <p>Indeed, as Ms. Andersen points out, the Court also stated, "the statute does not compel disclosure of the <em>complaint </em><em>itself</em>." (Emphasis added.) <em>Demers</em> at 831. The Court did not address the broader issue of access to <em>any</em> personnel-related documents, such as routine application materials; the discussion was confined to the issue of complaint-related data:</p> <p class="opinion_quote">The clear language of the statute mandates the city to tell Demers (a) whether complaints or charges have been filed against individual police officers, (b) the status of complaints or charges, and (c) the specific reasons for and final disposition of any disciplinary action taken against an officer, together with supporting data. <em>Demers</em> at 831.</p> <p>The plain language of section 13.03, subdivision 3, states that data requesters "<em>shall</em> be permitted to inspect and copy public government data." (Emphasis added.) This section, read together with the general presumption that government data are public unless otherwise classified, requires that data requesters have access to the actual data that they request. (Additionally, in reviewing the blank application and application supplement at issue here, it is apparent that there are data not on individuals included on the documents that would not be classified under section 13.43 and are presumptively public.)</p> <p>Furthermore, Chapter 13 does not generally require government entities to create data in order to respond to data requests. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267600" title="00-048" target="_blank">00-048</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267945" title="01-011" target="_blank">01-011</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267507" title="01-012" target="_blank">01-012</a>.) Here, the County's interpretation would suggest that requests for the public data classified in section 13.43, subdivisions 2 and 3, require the creation of data by setting out the data in a separate document from the original. However, Chapter 13 contains no such requirement.</p> <p>The Commissioner would like to provide a final note. In the course of her data request, Ms. Boeck corresponded with a number of different individuals at the County. She included in her opinion request materials, <em>Scott County Guidelines and Procedures for the Minnesota Government Data Practices Act</em>. Appendix C of the document identifies Mr. Shelton, County Administrator, as the Responsible Authority. The document also identifies (by names) a designee, a Compliance Official, and a list of "Responsible Authorities for Divisions." Generally, Chapter 13 requires one responsible authority and one data practices compliance official per entity (see Minnesota Statutes, section 13.05, subdivision 13). The appointment of designees is optional and they may perform a variety of duties (see Minnesota Statutes, section 13.02, subdivision 6). The County may be able to streamline some of its data practices correspondence and avoid confusion in the future by clearly identifying its data practices contacts and directing data requesters to those specific parties empowered to respond to particular requests.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Boeck raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, Scott County did not respond appropriately to a data request for copies of public personnel data from an employment application and application supplement; the County should have provided the requester with redacted copies of the actual data.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 14, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2672112668432022-01-18T19:23:08Z266258513982266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267196" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2013-01-08T16:14:43ZA member of the public sought access to data related to a request for proposal (RFP) under the process in section 13.591, subd. 3(b). The entity cancelled procurement for the original contract prior to completion of the evaluation process, and three weeks later, re-solicited two new RFPs for the project. The entity‘s decision to cancel the RFP did not mean it “abandon [ed] the purchase” (at which point data that are otherwise protected become public), even though the scope of the resolicited RFPs differed from the original, the project that is the subject of the RFPs is unchanged. January 8, 2013; Metropolitan Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On October 29, 2012, the Information Policy Analysis Division (IPAD) received a letter dated October 26, 2012, from Leita Walker, on behalf of Star Tribune Media Company, LLC. In her letter, Ms. Walker asked the Commissioner to issue an advisory opinion about her client's right to gain access to certain data the Metropolitan Council maintains. IPAD asked for additional information, which Ms. Walker provided on November 8 and 16, 2012. <br /> <br /> IPAD, on behalf of the Commissioner, wrote to Susan Haigh, Council Chair, in response to Ms. Walker's request. The purposes of this letter, dated November 19, 2012, were to inform her of Ms. Walker's request and to ask her to provide information or support for the Council's position. On December 10, 2012, IPAD received a response from Dave Theisen, Deputy General Counsel for the Council.</p> <p>A summary of the facts as Ms. Walker provided them follows. She wrote:</p> <p class="opinion_quote">On October 21, 2011, the Metropolitan Council issued a Request for Proposal for Contract No. 11P173, seeking Engineering Services for Southwest Light Rail Transit Line. Attachment 1 to the Request for Proposal covered the scope of work and described that scope as follows:</p> <p class="opinion_quote">1. Various services in support of COUNCIL performed Project Management activities. <br /> 2. 30% Preliminary Engineering (PE) for all aspects of the light rail system; <br /> 3. Advanced Preliminary Engineering for all aspects that require up to 90% completion to gain entry into Final Design; <br /> 4. Final Design; and <br /> 5. Design Support Services During Construction.</p> <p class="opinion_quote">...</p> <p class="opinion_quote">However, no bid was ever accepted and, at a July 25, 2012, meeting of the Metropolitan Council, the following motion carried:</p> <p class="opinion_quote">That the Metropolitan Council authorize the Regional Administrator to:</p> <p class="opinionquoteinquote"><em>Cancel</em> the procurement for Contract 11P173 for an Engineering Services Consultant for Southwest Light Rail Transit (SWLRT); <br /> Develop and issues [sic] <em>new</em> Requests for Proposals for Engineering Services Consultant(s) for developing and engineering documents to 30% completion of project engineering; <br /> Develop and issue a <em>new</em> Request for Proposal for an independent engineering peer review consultant tasked with review of contract deliverables generated by the Engineering Services Consultant(s).</p> <p class="opinion_quote">In August 2012, the Metropolitan Council issued two new Requests for Proposal: Contract Nos. 12P176 and 12P177. These contracts differ substantially from Contract No. 11P173. They cover only preliminary engineering, not advanced design work, and each contract is for a portion of the southwest corridor line, not the entire route as called for in Contract No. 11P173. The estimated cost of the new contracts is also substantially less than the $94 million estimated cost of Contract No. 11P173.</p> <p class="opinion_quote">[Emphasis provided; notes omitted.]</p> <p>On July 30, 2012, Star Tribune asked for access to data "regarding the recently canceled procurement for Contract 11P173," which the Council denied in part. Ms. Walker wrote:</p> <p class="opinion_quote">On September 5, 2012, Star Tribune asked the Metropolitan Council to reconsider its decision to withhold data regarding the evaluation processes for procurement for the canceled purchase. Star Tribune referenced Minn. Stat. section 13.591 subd. 3 and noted both that the Metropolitan Council had explicitly canceled Contract No. 11P173 and that Contract Nos. 12P176 and 12P177 were significantly different in scope and cost. As Star Tribune explained, these new Requests for Proposal were not "initial" or "subsequent" procurements for the same engineering work, but completely separate procurements for vastly different work.</p> <p class="opinion_quote">The Metropolitan Council responded on September 14, 2012. Despite the clarity of the July 25 meeting minutes, it denied that the Council had "abandoned" the purchase for Contract No. 11P173, and it characterized the new contracts as a "re-packaging" of the work envisioned by Contract No. 11P173. Specifically, it stated,</p> <p class="opinionquoteinquote">Data regarding the evaluation process for contract 11P173 remains protected nonpublic data. The Council has not abandoned the purchase and the evaluation process for Contract 11P173 was not completed. Contract 11P173 contained preliminary engineering work for the Southwest Corridor Light Rail line and 12P176 and 12P177 also contain preliminary engineering work for the Southwest Corridor Light Rail line. Significant elements of the work remain the same, although they are packaged differently....</p> <p>Ms. Walker wrote to the Commissioner:</p> <p class="opinion_quote">The Metropolitan Council does not deny that it "Cancel[ed] the procurement for Contract 11P173." That decision is determinative. This is not a case where the Metropolitan Council rejected all the bids but left open the possibility of a re-solicitation (in which case the requested data would remain private/nonpublic for a year). Instead, this is a case where the Metropolitan Council affirmatively and explicitly canceled - i.e., <em>abandoned</em> - a purchase. Therefore, all of the data in the bidders' responses to the Request for Proposal should be disclosed, with the exception of trade secret data.</p> <p class="opinion_quote">The Metropolitan Council nevertheless refuses to disclose the data based on the argument that, although it might have canceled Contract No. 11P173, it has not abandoned the southwest corridor <em>project</em>. As its legal staff explained, "Significant elements of the work remain the same, although they are packaged differently." However, Minn. Stat. section 13.591 subd. 3, does not speak of <em>projects</em> or "<em>the work</em>." Instead, it refers to "abandon[ment] of the <em>purchase</em>."</p> <p class="opinion_quote">Here, the "purchase" has been abandoned. The Metropolitan Council will not be purchasing preliminary engineering and advanced design work for the entire southwest corridor line at a cost of $94 million from a single vendor. Instead, it will be purchasing something else, in response to separate Requests for Proposal. The Metropolitan Council cannot protect the data about abandoned Requests for Proposal simply by carving up projects and then issuing new Requests for Proposal. It cannot avoid the clear requirements of section 13.591 with a claim of "repackaging." [Emphasis provided.]</p> <p class="opinion_quote"> </p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Walker's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, when it denied access to the following data?</p> <ul> <li>Data of correspondence from January 1, 2012, to the present between URS Corporation or AECOM and Metropolitan Council staff regarding the recently canceled procurement for contract 11P173 for an engineering services consultant for Southwest Light Rail Transit (SWLRT). The data include emails, letters and any other written correspondence.</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.591, subdivision 3(b), provides:</p> <p class="opinion_quote">Data submitted by a business to a government entity in response to a request for proposal are private or nonpublic until the responses are opened. Once the responses are opened, the name of the responder is read and becomes public. All other data in a responder's response to a request for proposal are private or nonpublic data until completion of the evaluation process. For purposes of this section, "completion of the evaluation process" means that the government entity has completed negotiating the contract with the selected vendor. After a government entity has completed the evaluation process, all remaining data submitted by all responders are public with the exception of trade secret data as defined and classified in section 13.37.</p> <p class="opinion_quote">If all responses to a request for proposal are rejected prior to completion of the evaluation process, all data, other than that made public at the response opening, remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process or a determination is made to abandon the purchase. If the rejection occurs after the completion of the evaluation process, the data remain public. If a resolicitation of proposals does not occur within one year of the proposal opening date, the remaining data become public.</p> <p>Here, the Council began, but did not complete, negotiation of Contract 11P173, and therefore did not "complete the evaluation process." Hence, the classification of the data in question depends upon whether the Council re-solicited the request(s) for proposal, or abandoned the purchase.</p> <p>The Legislature did not define the meaning of the phrase "abandon the purchase" in section 13.591, subdivision 3. Minnesota Statutes, section 645.08, provides that words and phrases not defined in statute are to be construed according to their common and approved usage. Collins English Dictionary - Complete Unabridged 10th Edition (2009) defines "abandon" as "to forsake completely;" "to give up completely;" "to give up (something begun) before completion: to abandon a job."</p> <p>In his comments to the Commissioner, Mr. Theisen reiterated much of what the Council told Star Tribune. He wrote:</p> <p class="opinion_quote">Except for the geographical focus of the two RFPs, the preliminary engineering services covered by the August 17, 2012 RFPs are substantially the same as the preliminary engineering services that were covered by the first two phases (Initial Preliminary Engineering and 30% Complete Preliminary Engineering) of the engineering services contract (Contract No. 11P173) that would have been procured under the RFP issued in October 2011.</p> <p>Mr. Theisen stated, "[t]he Council did not 'abandon' the 'purchase' of engineering services for the SWLRT Project when it cancelled the procurement of Contract No. 11P173. The Council is proceeding to 'purchase' essentially the same preliminary engineering services under the RFPs for Contract Nos. 12P176 and 12P177 that it solicited under the October 2011 RFP for Contract No. 11P173."</p> <p>He commented further on details of the differences in the RFPs and stated:</p> <p class="opinion_quote">According to SWLRT Project Office staff, none of these new provisions or clarifications changes the scope of the preliminary engineering services that were the subject of the October 2011 RFP. The preliminary engineering services that will be procured under the RFPs for Contract Nos. 12P176 and 12P177 are essentially the same preliminary engineering services that would have been procured under the October 2011 RFP for Contract No. 11P173.</p> <p>Section 13.591, subdivision 3(b), states that data that are otherwise protected become public if an entity abandons the purchase of the subject of the RFP. Here, the Council cancelled procurement for Contract 11P173, thereby rejecting all responses to the RFP for engineering and related services for the SWLRT, prior to completion of the evaluation process. Three weeks later, the Council re-solicited two new RFPs for the project. It did not abandon the project.</p> <p>The scope of Contract 11P173 differs from Contracts 12P176 and 12P177, but the project that is the subject of the RFPs is unchanged. The Commissioner respectfully disagrees with Ms. Walker's assertions that the Council's action to cancel procurement of Contract 11P173and issue new RFPs is an <em>abandonment of the purchase</em>. The purchase is for engineering and related services for the SWLRT. Given the process set forth in section 13.591, it is clear that the Legislature contemplated that aspects of public projects could change and necessitate re-solicitation of RFPs, and that is the case here.</p> The Commissioner notes that the Council might have used clearer language that could have helped avoid this kind of confusion. For example, its July 25, 2012, motion could have stated that the Council authorized the Regional Administrator to cancel and re-solicit the procurement for contract 11P173, thus clearly stating its intent to re-solicit, rather than abandon, the purchase of engineering and related services for the SWLRT. <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Ms. Walker is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The Metropolitan Council complied with Minnesota Statutes, Chapter 13, when it denied access to the following data:</p> <ul> <li>Data of correspondence from January 1, 2012, to the present between URS Corporation or AECOM and Metropolitan Council staff regarding the recently canceled procurement for contract 11P173 for an engineering services consultant for Southwest Light Rail Transit (SWLRT). The data include emails, letters and any other written correspondence.</li> </ul> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 8, 2013.</p> <hr /></td> </tr> </tbody> </table> </div>2671962666782022-01-18T19:23:08Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267413" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-12-11T16:14:43ZAn entity asked whether communications sent by its board members from their personal accounts and equipment were government data and if so, how those data were classified. When the board members were acting in their official capacity in calling, emailing, or writing, the data were government data subject to Chapter 13. The communications are classified as public under the general presumption, and residential address and email or telephone number are public data as well, pursuant to section 13.601, subd. 3(b), as well. December 11, 2012; Duluth Airport Authority36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On October 25, 2012, the Information Policy Analysis Division (IPAD) received a letter from Joan Christensen, attorney for the Duluth Airport Authority (Authority), dated October 23, 2012. In her letter, Ms. Christensen asked the Commissioner to issue an advisory opinion regarding certain data that the Authority maintains.</p> <p>In letters dated, October 29, 2012, the Commissioner offered Allegiant Air, LLC (Allegiant), and the Authority board member data subjects, an opportunity to comment. On November 13, 2012, Aaron A. Goerlich and Jason E. Maddux, attorneys for Allegiant, submitted comments on Allegiant's behalf. The board member data subjects did not respond.</p> <p>A summary of the facts follows. Ms. Christensen wrote in her opinion request:</p> <p class="opinion_quote">The Authority consists of seven appointed Board members who are not employees of the Authority. The Authority does not provide Board members with or reimburse Board members for cell phones or computers. Additionally, Board members do not utilize an Authority email address or telephone number/extension. <br /> <br /> On September 24, 2012, the Authority received a request from Allegiant under the Freedom of Information Act (1966) and the Minnesota Data Practices Act (2011) requesting that the Authority provide:</p> <p class="opinionquoteinquote">... all data and information pertaining to any conversations, communications, or correspondence, including but not limited to: emails, letters, and text messages, between all employees, representatives, officers, directors, and any other individuals speaking for or on behalf of Monaco Air, and any members of the Authority and/or [Duluth International Airport] staff within the last two years.</p> <p>(Allegiant also requested data regarding meetings among the Authority, airport staff and Monaco Air, which are not the subject of this opinion.)</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Christensen's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Pursuant to Minnesota Statutes, Chapter 13, are text messages, emails, and letters between board members of the Duluth Airport Authority and employees or representatives of Monaco Air, government data, when sent to or from the Board Members' personal cellphones, computers, or home addresses? <br /> <br /> 2. If the answer to the first issue is yes, how are the data classified? <br /></p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><strong>Issue 1</strong>. <em>Pursuant to Minnesota Statutes, Chapter 13, are text messages, emails, and letters between board members of the Duluth Airport Authority and employees or representatives of Monaco Air, government data, when sent to or from the Board Members' personal cellphones, computers, or home addresses?</em></p> <p>Pursuant to Minnesota Statutes, section 13.02, subdivision 7, 'government data' means all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.</p> <p>In 2008, the Commissioner opined that when a superintendent used a personal data recorder to record portions of a school board meeting, he was acting in his official capacity and therefore, the recording was government data. The Commissioner stated, there often are situations in which government employees use their own equipment (cars, computers, cell phones, pagers, etc.) for work related purposes. It is not reasonable to conclude that in those situations, related data could not be considered government data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-266866" title="08 028" target="_blank">Advisory Opinion 08-028</a>.)</p> <p>Ms. Christensen stated that the Board members are not employees of the Authority. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267335" title="03 011" target="_blank">Advisory Opinion 03-011</a>.) In a 2010 advisory opinion, the Commissioner noted that regardless of the facts that a mayor corresponded with an organization using his personal email address and did not use official letterhead, the data in the email were still considered government data because he was acting in his official capacity as an elected official. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-266863" title="10 023" target="_blank">Advisory Opinion 10-023</a>.)</p> <p>Here, the data requester, Allegiant, asked the Authority to provide data documenting conversations and correspondence between the Authority and Monaco Air. Some of the correspondence between Authority board members was sent to and received from personal email accounts, phones and home addresses.</p> <p>Mr. Goerlich and Mr. Maddux wrote:</p> <p class="opinion_quote">It is thus irrelevant whether the Authority's Board members communicated with Monaco Air using Authority email addresses, telephone numbers, cellphones and/or computers. If the Board members communicated in their capacity as Board members the resulting data is unquestionably government data.</p> <p>The Commissioner agrees. As long as the members of the Authority, or staff of the Airport, were communicating in their capacity as board members or public employees, the data are government data, subject to Chapter 13.</p> <p><strong>Issue 2. </strong><em>If the answer to the first issue is yes, how are the data classified?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>As noted above, the Authority does not consider its board members to be employees. Therefore, data collected and maintained about them are not classified pursuant to Minnesota Statutes, section 13.43.</p> <p>Minnesota Statutes, section 13.601, subdivision 2, provides, "[c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient."</p> <p>Per the plain language of that section, subdivision 2 only applies to elected officials. Because the Authority is comprised of seven appointed officials, section 13.601, subdivision 2, does not apply to the Authority's board members. (The Commissioner also wishes to note that section 13.601 applies only to correspondence between an elected official and an individual, not an organization. See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-266863" title="10 023" target="_blank">Advisory Opinion 10-023</a>.)</p> <p>Section 13.601, subdivision 3(b), does classify the residential address and either a telephone number or electronic mail address where the appointee can be reached (or both at the request of the appointee) as public data.</p> <p>Therefore, data documenting correspondence or communication between the board members and Monaco Air are public data pursuant to the general presumption. Residential address and email or telephone number are public data, pursuant to section 13.601, subdivision 3(b), as well.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Christensen raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Text messages, emails, and letters among between members of the Duluth Airport Authority and employees or representatives of Monaco Air, are "government data" when the board members are acting in their capacity as public officials, regardless of whether the correspondence was sent to or from the Board Members' personal cellphones, computers, or home addresses.</li> <li>Correspondence between the Authority board members and Monaco Air are public data pursuant to the general presumption. (Minnesota Statutes, section 13.03, subdivision 1.)</li> </ol> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: December 11, 2012.</p> <hr /></td> </tr> </tbody> </table> </div>2674132663802669822022-01-18T19:24:47Z266258266293266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267164" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-12-06T02:14:43ZA member of the public asked whether an entity improperly released private data about a board member. At the time it released data to the public, the entity’s human resources director considered board members to be entity employees. The board passed a resolution that members are not employees six weeks later, and there was no evidence in the record that the entity had taken any other affirmative action regarding their employment status before then. Accordingly, the data were personnel data about the board member, regardless of any action to the contrary the board took subsequently. The entity was obligated to determine the classification of data before releasing it to the public.December 5, 2012; Independent School District 15 (St. Francis)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On October 19, 2012, the Information Policy Analysis Division (IPAD) received an email dated October 10, 2012, from Matthew Rustad, in which he asked the Commissioner to issue an advisory opinion about his rights as a subject of data Independent School District 15, St. Francis, maintains. IPAD asked for additional information/clarification, which Mr. Rustad provided on October 25, 2012.</p> <p>IPAD, on behalf of the Commissioner, wrote to David Lindberg, the District's Human Resources Director and Responsible Authority, in response to Mr. Rustad's request. The purposes of this letter, dated October 29, 2012, were to inform him of Mr. Rustad's request and to ask him to provide information or support for the District's position. On November 14, 2012, IPAD received a response, dated same, from Amy E. Mace and Courtney R. Sebo, attorneys for the District. Ms. Mace and Ms. Sebo provided additional information on November 19, 2012, in response to a request from IPAD.</p> <p>A summary of the facts as Mr. Rustad provided them follows. Mr. Rustad is a member of the District school board. On September 10, 2012, he met with Mr. Lindberg, the board chair, the superintendent, and the editor of the newspaper, to discuss the issue of censure of Mr. Rustad in response to a complaint against him.</p> <p>On September 11, 2012, Mr. Lindberg sent an email to a member of the public, in which he discussed the specific nature of that complaint. In his email, Mr. Lindberg wrote about the September 10 meeting:</p> <p class="opinion_quote">Administration felt that it was important for the board members to be aware of the issue in a timely manner and give the board member involved in the issue an opportunity to discuss the situation in an appropriate context. The group arrived at a consensus decision to place an agenda item on the next school board meeting to censureMatt Rustad. The consensus of the group for the censure agenda item will be regarded as the final disposition of this matter in relation the the [sic] MN Govt. data practices act.</p> <p>That same member of the public then asked Mr. Lindberg if school board members were employees of the District, to which Mr. Lindberg replied, in a September 19, 2012, email, "[y]es they are considered employees for specific contexts such as the purpose of that [life insurance] benefit and for MN Data Practices Act purposes."</p> <p>Mr. Rustad wrote to the Commissioner that the board met on September 24, 2012, "to vote on the censure as the final disposition." He asked whether Mr. Lindberg had the authority to release the details of the complaint against him to the public, "before the authorized authority (School Board)" made a final decision, and whether the District violated Minnesota Statutes, section 13.43, "by stating that a final disposition had been made" prior to the board's vote. He also asked whether the District had violated his rights "by allowing the editor of the newspaper to be present at the private meeting."</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Rustad's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 15, St. Francis, violate a school board member's rights when it released certain data about him to the public?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>The existence and status of a complaint or charge against an employee are public. If an entity disciplines an employee, the final disposition, the specific reasons for and data documenting the basis of the discipline become public. (See section 13.43, subdivision 2(a)(4) and (5).) Subdivision 2(b) provides when disciplinary action is final for purposes of section 13.43.</p> <p>(Not of relevance here, Minnesota Statutes, section 13.601, subdivision 2, classifies certain data on elected officials as not public.)</p> <p>In his September 19, 2012, email to the member of the public, Mr. Lindberg stated that board members were District employees for MN Data Practices Act purposes. Ms. Mace and Ms. Sebo correctly stated that the Commissioner has consistently opined that it is up to an entity to determine whether its elected officials, such as school board members, are employees for purposes of Chapter 13. (See, for example, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267335" title="03-011" target="_blank">Advisory Opinion 03-011</a>.) They wrote:</p> <p class="opinion_quote">[T]he District does not consider its School Board members to be employees; rather, it considers them to be elected officials. The School Board has never passed a resolution finding that School Board members are employees. In fact, the School Board has adopted a resolution finding that School Board members are <em>not</em> employees of the District. As such, the provisions of Section 13.43 do not apply to Mr. Rustad as an elected official, and all data maintained by the District about him, including the data in the email sent by Mr. Lindberg to the citizen, are public pursuant to Section 13.03, subdivision 1. [Emphasis provided.]</p> <p>Ms. Mace and Ms. Sebo provided an undated copy of the resolution to which they refer. However, they provided supplemental documentation that the board adopted the resolution at its October 22, 2012, board meeting.</p> <p>Ms. Mace and Ms. Sebo discussed Mr. Lindberg's September 19, email, referenced above:</p> <p class="opinion_quote">Despite Mr. Lindberg's statement, there is no evidence that the governing body of the District, i.e., the School Board, considers Board members to be District employees. r. Lindberg is the responsible authority under [Chapter 13] for receiving and responding to data requests. Mr. Lindberg, however, does not have the authority to determine whether Board members are employees .... The determination of whether a position within a governmental entity enjoys the status of employee is not one of the responsibilities [of responsible authorities listed in Minnesota Rules, section 1205.0900.]</p> <p>Ms. Mace and Ms. Sebo are correct that responsible authorities do not have a statutory duty to determine the employment status of individuals in an entity. However, Mr. Lindberg is also the District's human resources director, and at the time he publically released data about Mr. Rustad, he considered the school board members to be District employees. The school board passed its resolution that members are not employees six weeks later, and there is no evidence in the record that the District had taken any other affirmative action regarding their employment status before October 22, 2012. Accordingly, the data Mr. Lindberg released were personnel data about Mr. Rustad, regardless of any action to the contrary the board took subsequently. <br /> <br /> As an employee, absent a final disposition of disciplinary action, personnel data detailing the nature of the complaint/charge against Mr. Rustad were private, pursuant to section 13.43, subdivision 2(a)(5). As the District's responsible authority, Mr. Lindberg was obligated to determine the classification of District data before releasing it to the public.</p> According to Ms. Mace and Ms. Sebo, the "newspaper editor" who attended the September 10, 2012, meeting was the District's Assistant Director of Community Education, who has responsibility to publish the District newsletter. It was appropriate for him to attend only if his "work assignment reasonably require[d]" him to get access to those private data about Mr. Rustad. (See Minnesota Rules, part 1205.0400.) <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Rustad is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, Independent School District 15, St. Francis, violated a school board member's rights when it publicly released certain personnel data about him, which were private, because it apparently considered board members to be employees at the time it released the data. <br /> <br /> Subsequently the board passed a resolution clearly stating that board members are not employees for purposes of Minnesota Statutes, section 13.43.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: December 5, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2671642667722022-01-18T19:24:47Z266258266394266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267599" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-11-05T16:14:43ZA reporter asked a county attorney for access to data about a crime lab. The attorney stated to the Commissioner that the requested data are used, collected, stored and disseminated exclusively in connection with his professional activities as a prosecuting attorney, and that the crime lab data relate to on-going as well as previous criminal prosecutions. As such, pursuant to Minnesota Statutes, section 13.393, those data are exempt from disclosure. The Commissioner did not review the data in question and cannot determine whether the county attorney maintains any other data regarding the crime lab that are not exempt from disclosure under section 13.393. For example, if the county attorney maintains data related to any agreements his office has entered into with the lab, those data likely are not protected by section 13.393November 5, 2012; Dakota County Attorney's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On September 20, 2012, the Information Policy Analysis Division (IPAD) received a letter from Madeleine Baran, of Minnesota Public Radio. In her letter, Ms. Baran asked the Commissioner to issue an advisory opinion about her right to gain access to certain data the Dakota County Attorney's Office maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to James Backstrom, Dakota County Attorney, in response to Ms. Baran's request. The purposes of this letter, dated September 27, 2012, were to inform him of Ms. Baran's request and to ask him to provide information or support for the Office's position. Mr. Backstrom responded on October 9, 2012.</p> <p>A summary of the facts as Ms. Baran provided them follows. She wrote:</p> <p class="opinion_quote">On Sept. 5, 2012, I emailed a Data Practices request to Mr. Backstrom to request access to: [a]ll written communication received or created by employees of the Dakota County Attorney's Office regarding the St. Paul Police Department crime lab from January 1, 2012 to September 5, 2012. This data includes but is not limited to emails, meeting notes, reports, and memos.</p> <p><span class="opinion_quote">Mr. Backstrom replied via email the same day. He wrote:</span></p> <p class="opinionquoteinquote">Data generated and maintained by the Dakota County Attorney's Office, including Emails and other correspondence sent or received related to criminal prosecution files, are not subject to the Minnesota Government Data Practices Act [MGDPA] pursuant to Minnesota Statutes section 13.393. .... All aspects of this issue will be handled in the courtroom through the continuing litigation pertaining to this matter and in the litigation relating to prosecutions of individual pending drug cases. ....</p> <p class="opinion_quote">[In response, I wrote], [i]t is my understanding that Minnesota Statute does not state that all data generated and maintained by a county attorney's office is private. Rather, it provides a list of specific types of data that are private, and everything not specified as private is public. In this case, there may be some data that is private and some data that is public that pertains to the crime lab.</p> <p class="opinion_quote">Mr. Backstrom [responded]:</p> <p class="opinionquoteinquote">You have accurately stated the general rule of the Data Practices [Act], i.e., that government data not specifically made private is considered to be public. However, by virtue of Section 13.393 of the same Act, the general rule does not apply to data in the office of a government attorney. Section 13.393 clearly states on its face and that I am not obligated by the Data Practices Act to share emails maintained in my Office with members of the public or the press.</p> <p class="opinion_quote">I believe Mr. Backstrom's interpretation of statute is overly broad. I do not believe the statute is meant to make private all data held by a county attorney's office. If that was the case, for example, the public would not have access to data about the county attorney's office's budget or an official list of job responsibilities for the position of county attorney.</p> <p class="opinion_quote">In regards to my specific data request, I believe that administrative data related to the crime lab that does not involve an active case is public.</p> <p class="opinion_quote">Further, I have filed Data Practices requests in the past with the Ramsey County Attorney's Office and they have provided access to data without objection, to the extent allowed by statute. On a related note, I have also filed Data Practices requests with the St. Paul Police Department regarding the crime lab and have received an extensive amount of data.</p> <p>Ms. Baran also provided the Commissioner with copies of her correspondence with Dakota County Sheriff David Bellows, in which Ms. Baran requested access to "[a]ll written communication received or created by employees of the Dakota County Sheriff's Office regarding the crime lab [including but not] limited to emails, meeting notes, reports, and memos. This also includes but is not limited to employees of the Dakota County Drug Task Force."</p> <p>In response, Mr. Bellows wrote to Ms. Baran:</p> <p class="opinion_quote">We searched our files and found two email messages from our attorney that pertain to the St. Paul police department crime lab. However I have been advised by the County Attorney's office that these email messages are classified as nonpublic pursuant to Minn. Stat. 13.393, because they constitute attorney work product prepared in conjunction with its response to discovery requests made in a legal action.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Baran's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Dakota County Attorney's Office comply with Minnesota Statutes, Chapter 13, when it denied access to the following data?</p> <ul> <li>All written communication received or created by employees of the Dakota County Attorney's Office regarding the St. Paul Police Department crime lab from January 1, 2012, to September 5, 2012.</li> </ul> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.393, provides:</p> <p class="opinion_quote">Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for a government entity shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</p> <p>Section 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267516" title="05-009" target="_blank">Advisory Opinion 05-009</a>, the Commissioner discussed <em>City Pages v. State of Minnesota</em>, 655 N.W.2d 839 (Minn. Ct. App. 2003). In finding that neither the attorney-client privilege nor the work-product doctrine protected attorney billing records in their entirety, the Court wrote that the attorney-client privilege protects those parts of the billing records that "communicated legal advice that would not have been disclosed but for the existence of the privilege" and, in order to be protected by the work product doctrine, "material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation."</p> <p>Section 13.393 must be applied in a way that harmonizes its provisions with the requirements of Chapter 13, as well as other provisions of statute and rule. Given the limiting language in the last phrase of section 13.393, i.e., "or shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17," clearly the Legislature did not intend that any and all data used, collected, stored, or disseminated by a public attorney, or government data held by a government entity that relate to the conduct of its legal affairs, are exempt from disclosure under Chapter 13.</p> <p>In his comments to the Commissioner, Mr. Backstrom stated that the data to which he denied access are data that are "used, collected, stored and disseminated exclusively in connection with the County Attorney's professional activities as prosecuting attorney in Dakota County for the State of Minnesota." According to Mr. Backstrom, the crime lab data relate both to on-going as well as previous criminal prosecutions handled by the County Attorney. He wrote:</p> <p class="opinion_quote">Accordingly, the crime lab data is not subject to disclosure by the provisions of the MGDPA. The clear intent of Section 13.393 is to exclude such data from the requirements of the MGDPA while acknowledging that other statutes, rules and professional standards do regulate disclosure of the crime lab data. ....</p> <p class="opinion_quote">Section 13.393, however, does not exempt all data in the County Attorney's Office from the reach of the MGDPA. Data in the County Attorney's Office that are used, collected, stored and disseminated by the County Attorney acting in his capacity as the head of a County department and not in a professional capacity (either as a prosecutor or as counsel to the county board) is governed by the MGDPA. This would include, by way of example, information about the County Attorney's Office organizational structure, County Attorney programs not constituting legal work, budget and financial information, personnel data, general office policies and procedures, press releases, statistical information (when available), and contracts. The County Attorney's obligation to release or withhold any of this data is governed by the MGDPA.</p> <p>Ms. Baran asked for access to "all written communication received or created by employees of the Dakota County Attorney's Office regarding the St. Paul Police Department crime lab " She suggested that the Office might maintain data on the crime lab that are more administrative in nature and therefore, accessible.</p> <p>The Commissioner has not reviewed the data in question and cannot determine whether the Office maintains any data regarding the crime lab that are not exempt from disclosure by section 13.393. For example, if the Office maintains data related to any agreements it has entered into with the lab, those data likely are not protected by section 13.393.</p> <p>Mr. Backstrom did not address that the Dakota County Sheriff denied Ms. Baran access to two emails because the Dakota County Attorney's Office instructed him to do so. The Commissioner encourages Mr. Backstrom to review the possibility that the Dakota County Sheriff's Office maintains data on the crime lab, other than the two emails, that should be accessible to Ms. Baran, i.e., data not governed by section 13.393 and not otherwise classified as not public. For example, pursuant to Minnesota Statutes, section 13.82, subdivision 7, inactive criminal investigative data are public (with exceptions), and any investigative data presented as evidence in court are public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Ms. Baran is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Dakota County Attorney's Office complied with Minnesota Statutes, Chapter 13, when it denied access to the requested data, if all of the data it maintains regarding the crime lab are used, collected, stored and disseminated exclusively in connection with the County Attorney's professional activities for Dakota County, and thus are exempt from disclosure pursuant to section 13.393.</p> </td> </tr> </tbody> </table> <p><br /> Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: November 5, 2012</p> <hr /> </td> </tr> </tbody> </table> </div>2675992663972666762022-01-18T19:24:47Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266868" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-10-22T15:14:43ZA newspaper asked whether a county responded appropriately to its request for access to voter challenge status data. The County responded that the names and/or numbers of voters whose eligibility was challenged by the County were not accessible to the public under Minnesota Statutes, section 201.091. Section 201.091, subdivision 1 restricts access to the “master list”; however, voter challenge status is not an element on that list. Subdivision 2 grants access to the “public information list” as well as “other information from the statewide registration system.” Based on the plain language of the law, Minnesota Rules, part 8200.9120, and advisory opinion 00-038, the Commissioner opined that the newspaper should have been given access to the voter challenge status data. October 22, 2012; St. Louis County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> <p><strong>Note: See the Minnesota Supreme Court's opinion in <em>Cilek v. Office of the Minnesota Secretary of State</em>, No. A18-1140 (Minn. April 8, 2020), regarding access to data at issue in this opinion.</strong></p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On September 7, 2012, the Information Policy Analysis Division (IPAD) received a letter, dated August 20, 2012, from Jennifer Martin-Romme of the <em>Zenith City Weekly</em>. In her letter, Ms. Martin-Romme asked the Commissioner to issue an advisory opinion about the classification of certain data administered by St. Louis County.</p> <p>IPAD, on behalf of the Commissioner, wrote to Gary Eckenberg, Deputy St. Louis County Administrator and Data Practices Compliance Official for the County, in response to Ms. Martin-Romme's request. The purposes of this letter, dated September 14, 2012, were to inform him of Ms. Martin-Romme's request and to ask him to provide information or support for the County's position. In an email dated October 10, 2012, Mr. Eckenberg wrote, I believe you have the position of the St. Louis County Auditor and the St. Louis County Attorney regarding this Data Practices Information Request, as conveyed to the Zenith City Weekly through earlier communications. IPAD also solicited comments from Secretary of State, Mark Ritchie. Bert Black, Legal Advisor to the Secretary of State, responded on October 5, 2012, in a letter dated the same.</p> <p>A summary of the facts follows. Ms. Martin-Romme wrote in her opinion request:</p> <p class="opinion_quote">On April 4, we called St. Louis County Director of Elections Patricia Stollee [sic] to request the names and/or number of voters in Morse Township whose eligibility to vote was challenged by the St. Louis County Board of Elections with regards to the March 13, 2012 election and the reason(s) their eligibility to vote was challenged. Ms. Stollee [sic] asked us to send her the request in writing, which we did on April 9. <br /> <br /> On April 11, Ms. Stollee [sic] responded in writing that the data are not public pursuant to [Minnesota Statutes, section] 201.091. <br /> <br /> On April 23, we resubmitted our request, citing [<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267265" title="00-038" target="_blank">Advisory Opinion 00-038</a>]. On May 3, we received a reply from Deputy Administrator Gary Eckenberg, indicating that the county attorney had denied our request: [I]t remains the opinion of the County Attorney that Minn. Stat. 201.091 prohibits the release of the information you have requested. The statute has been amended several times since the IPAD opinion you provided was written.</p> <p>The <em>Zenith City Weekly</em> resubmitted its request on July 2, 2012, asking for summary data. Mr. Eckenberg responded in a letter dated July 10, 2012, stating, my May 3 response to your initial Data Practices Information Request represents St. Louis County's final position on this matter. <br /></p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Martin-Romme's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, did St. Louis County respond appropriately to a request for the names and/or numbers of voters in Morse Township whose eligibility to vote was challenged and the reasons for those challenges, by stating that the data were not public under Minnesota Statutes, section 201.091?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Minnesota Statutes, section 201.091, subdivision 1, provides:</p> <p class="opinion_quote">Each county auditor shall prepare and maintain a current list of registered voters in each precinct in the county which is known as the master list. It must show the name, residence address, and date of birth of each voter registered in the precinct. The information contained in the master list may only be made available to public officials for purposes related to election administration, jury selection, and in response to a law enforcement inquiry concerning a violation of or failure to comply with any criminal statute or state or local tax statute.</p> <p>Section 201.091, subdivision 1, does not classify data, instead it restricts public access to the master list. Subdivision 4, however, refers to other data in the statewide registration system that are accessible to the public:</p> <p class="opinion_quote">The county auditor shall make available for inspection a public information list which must contain the name, address, year of birth, and voting history of each registered voter in the county. The telephone number must be included on the list if provided by the voter. The public information list may also include information on voting districts... The secretary of state may provide copies of the public information lists <em>and other information from the statewide registration system</em> for uses related to elections, political activities, or in response to a law enforcement inquiry from a public official concerning a failure to comply with any criminal statute or any state or local tax statute.</p> <p class="opinion_quote">Requests to examine or obtain information from the public information lists <em>or the statewide registration system</em> must be made and processed in the manner provided in the rules of the secretary of state. [Emphasis added.]</p> <p>The plain language of section 201.091, subdivision 4, anticipates providing access to data on the public information lists, and other information from the statewide registration system. Access to the master list is restricted, however, not all of the data in the statewide registration system are treated thus. The statute provides that the Secretary of State will provide rules regarding access to the data.</p> <p>In 2000, the Commissioner opined on the classification of voter challenge status data that were the subject of a rule then <em>proposed</em> by the Secretary of State. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267265" title="00-038" target="_blank">Advisory Opinion 00-038</a>.) Pursuant to Minnesota Statutes, section 204C.10, voters must sign a polling place roster, which is a list of voters within a given precinct. The polling place roster includes: the voter's name, address, entire date of birth, and voter registration status. Voter registration status includes, 'active'; 'challenged' (usually due to residency questions); 'felon' (disfranchised until the restoration of voting rights); or 'guardianship' (disfranchised until the guardianship of the person is ended). At that time, no statute or rule specifically addressed the issue of inspecting polling place roster data. The proposed rule included a provision to deny access to voter challenge status. After a hearing on the rule, an Administrative Law Judge concluded that voter challenge status data are public based on the general presumption. In 00-038, the Commissioner agreed. <br /> <br /> The Secretary of State subsequently promulgated Minnesota Rules, part 8200.9120, which provides: <br /></p> <p class="opinion_quote">An individual who asks to inspect a polling place roster used on election day must provide the county auditor with identification and a written request stating the information required by Minnesota Statutes, section 201.091, subdivision 4. Before fulfilling the request for inspection, the auditor must conceal the month and day of birth of each person on the roster.</p> <p>Read together, Minnesota Statutes, section 201.091, subdivision 4, and Minnesota Rule, part 8200.9120, provide that the data on the polling place roster (which includes voter challenge status) should be treated substantially the same as the data elements contained in the public information list, i.e., publically accessible for the purposes specified.</p> <p>Mr. Black, on behalf of the Secretary of State, argues that, <em>McGrath v. Minnesota Secretary of State</em>, No. 15-3500-21801-HV (Minn. Ct. App. Nov. 21, 2011) (unpublished), answers the question at issue in this opinion: "[w]e believe that election data, in the wake of the <em>McGrath</em> opinion, is private unless otherwise designated." The Commissioner respectfully disagrees. (Before discussing this unpublished opinion, it is important to note that pursuant to Minnesota Statutes, section 480A.08, subdivision 3(c), unpublished opinions of the Court of Appeals are not precedential.)</p> <p><em>McGrath</em> involved a Help America Vote Act (HAVA) complaint against the Secretary of State. One of the issues on appeal was whether the relators had adequate opportunity for discovery. Specifically, they wanted access to a complete master list of voting history for each registered voter. (While voting history is an element of the public information list, the public information list is not as "complete" as the master list, since some voter information may be withheld or removed from the public information list based on various factors or circumstances.) The Court stated, "[i]t was relators' wish to have access to the private master list. But by statute the only <em>list</em> available for inspection by members of the public is the public information list." [Emphasis added.]</p> <p>As noted above, the plain language of section 201.091, subdivision 4, makes clear that other voter information, in addition to the elements identified on the public information list, may be accessible by the public. Furthermore, while the master list is properly withheld from the public, the <em>Zenith City Weekly</em> was not requesting access to it. In fact, voter challenge status is not an element on the master list. The general presumption that government data are public is not reversed in the case of data on registered voters. Here, where there is no statutory classification of data, the data are presumptively public.</p> The Commissioner reiterates his comments in 00-038, that the best way to eliminate confusion over access to data maintained in the statewide registration system is for the Legislature to provide statutory clarity. <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. McVeigh raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Chapter 13, St. Louis County did not respond appropriately to a request for the names and/or numbers of voters in Morse Township whose eligibility to vote was challenged and the reasons for those challenges, by stating that the data were not public under Minnesota Statutes, section 201.091.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: October 22, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2668682663852022-01-18T19:24:44Z266258266768266293266781266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267975" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-10-08T15:14:43ZA charter school asked whether it was required to share not public data with the Minnesota Board of Teaching, following an initial report to the Board by the school. The Commissioner determined that pursuant to Minnesota Statutes, section 122A.20, a school is required to share with the Board any termination or disciplinary proceeding, any settlement or compromise, or any investigative file in the school’s files, regardless of any provision in Chapter 13.October 8, 2012; Concordia Creative Learning Academy (CCLA)36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><p /><h2> Facts and Procedural History: </h2><p> On August 17, 2012, the Information Policy Analysis Division (IPAD) received a letter from Ellen McVeigh, attorney for the Concordia Creative Learning Academy (CCLA), dated the same. In her letter, Ms. McVeigh asked the Commissioner to issue an advisory opinion regarding certain data that CCLA maintains. </p><p> In letters dated, August 22, 2012, the Commissioner offered the teachers involved and Leonard Runck, chair of the Minnesota Board of Teaching (the Board), an opportunity to comment. Mr. Runck did not respond. On September 24, 2012, Cindy Lavorato, attorney for the involved teachers, submitted comments on their behalf. </p><p> A summary of the facts follows. Ms. McVeigh wrote in her opinion request: </p><p class="opinion_quote"> During the academic year 2011-2012, three licensed teachers were employed under at will contracts by CCLA. On March 27, 2012, the Board of Directors placed the three employees on paid administrative leave, pending an investigation of conduct that was the subject of a complaint to CCLA's authorizer, Concordia University. Within ten days of the placement of the employees on paid administrative leave, the school made reports to the Board of Teaching and the Board of School Administrators, pursuant to Minn.Stat. Section 122A.20, subd. 2, indicating that the employees were on administrative leave pending an investigation of their conduct. </p><p class="opinion_quote"> ... </p><p class="opinion_quote"> The Minnesota Board of Teaching requested additional information on each employee, specifically: </p><p class="opinion_quote"> 1. Date employee began employment with ISD No. 4035; <br /> 2. Subject matter taught by each employee during his/her tenure with ISD No. 4035; <br /> 3. Whether any of the employees has been the subject of reports, allegations, complaints or any other type of charges that allege inappropriate behavior or conduct unbecoming a teacher; <br /> 4. The specific nature of the behavior which was the subject of the reports, allegations, complaints or other type of charges referred to in paragraph 3; <br /> 5. The outcome of any investigation or other type of inquiry conducted into the allegations referred to in paragraph 3 above, including but not limited to whether any disciplinary action was taken by the district, and the final outcome of that disciplinary action; <br /> 6. Whether the employee filed a grievance against any proposed disciplinary action by the district and if so, the current status of the grievance process; and, <br /> 7. Whether CCLA was aware of any involvement by local law enforcement, including investigation, in the allegations referred to in paragraphs 3 and 5 above. </p><p class="opinion_quote"> The Board indicates that its request pertains to current and prior allegations, and requests copies of all memoranda, letters, investigative notes, written reprimands and any other type of correspondence generated in response to all incidents covered by paragraphs 3 and 5. <br /> ... <br /> As part of the settlement [with the involved teachers], CCLA wrote to [the Board]..., indicating that it believed that its initial reports under Minn.Stat. Section 122A.20, subd. 2, were premature and requesting that [the Board] discontinue any investigation of the employees based on CCLA's initial reports. [The Board] has written to CCLA, declining to discontinue its investigation. <br /><br /></p><p> Ms. McVeigh then asked for this opinion, asking whether CCLA is required to share private data with the Board pursuant to Minnesota Statutes, section 122A.20, subdivision 2. <br /></p><hr /><h2> Issue: </h2><p> Based on Ms. McVeigh's opinion request, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Pursuant to Minnesota Statutes, Chapter 13, would Concordia Creative Learning Academy (CCLA) violate the rights of certain employees (licensed teachers) if it releases private personnel data about them to the Minnesota Board of Teaching under Minnesota Statutes, section 122A.20, subdivision 2? </p></td></tr></tbody></table><hr /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. </p><p> An employee's dates of employment and job description are public data under section 13.43, subdivision 2(a)(2) and (3). However, data related to complaints or charges against an employee may be public and/or private. The existence and status of a complaint or charge are public pursuant to section 13.43, subdivision 2(a)(4). When an entity has disciplined an employee, the final disposition, the specific reasons and data documenting the basis of the discipline become public. Where an employee is not disciplined, only the existence and status of a complaint or charge are public. </p><p> In Item 3, the Board seems to be requesting the existence of any complaints or charges, which would be public. However, Items 4 and 5 ask for additional data, some of which, if they exist, might be private data. Specifically, Item 5 requests: </p><p class="opinion_quote"> The outcome of any investigation or other type of inquiry conducted into the allegations referred to in paragraph 3 above, <em>including but not limited to whether any disciplinary action was taken by the district</em>, and the final outcome of that disciplinary action; (Emphasis added.) </p><p> If there are any complaints or charges against the involved teachers which did not result in a final disposition of disciplinary action, only the existence and status of the complaint or charge are classified as public. Additionally, Items 6 and 7 might also include not public data. </p><p> Minnesota Rules, part 1205.0400, subpart 2, restricts access to private data to the data subject, individuals given express written permission by the data subject, employees within the entity whose work assignment reasonably requires access, and entities and agencies who are authorized by statute or federal law. </p><p> Minnesota Statutes, section 122A.20, subdivision 2, requires the Board to investigate reports made to it regarding licensed teachers: [t]he licensing board to which the report is made <em>must</em> investigate the report for violation of subdivision 1 and the reporting board must cooperate in the investigation. (Emphasis added.) As part of its investigation, the Board may access data regardless of its classification under Chapter 13. Subdivision 2 further provides: </p><p class="opinion_quote"> Notwithstanding any provision in chapter 13 or any law to the contrary, upon written request from the licensing board having jurisdiction over the license, a board or school superintendent shall provide the licensing board with information about the teacher or administrator from the district's files, any termination or disciplinary proceeding, any settlement or compromise, or any investigative file. </p><p> Therefore, the plain language of the law requires CCLA to provide the Board with the requested data. </p><p> Ms. Lavorato argued in her comments that lack of a proper Tennessen Warning before the initial report precludes CCLA from sharing private data responsive to the Board's request. However, the Tennessen Warning is a requirement of Minnesota Statutes, section 13.04, subdivision 2, and 122A.20, subdivision 2, clearly states that a school board or superintendent shall provide the Board with certain data from the district's files, notwithstanding any provision of chapter 13. Therefore, the plain language would relieve CCLA from any restrictions imposed on data collected directly from a data subject, should CCLA have failed to provide an appropriate Tennessen warning. </p><p> The Commissioner notes that the involved teachers strongly objected to the initial report that CCLA made to the Board. It is their position that a defect in the initial reporting forestalls any subsequent release of data to the Board. In her comments, Ms. Lavorato stated, [t]he advisory opinion, as [IPAD has] framed it, is predicated on the assumption that CCLA's original report to the Minnesota Board of teaching was legal. The Commissioner acknowledges Ms. Lavorato's concerns. However, this opinion is predicated on the fact that despite CCLA's statement to the Board indicating that its initial report was premature, the Board has made the determination that its investigation will continue. The Commissioner was not presented with any arguments, statutory provisions or case law that suggests that a report under section 122A.20 can be withdrawn or rescinded (and a subsequent investigation halted), nor can the Commissioner comment on the Board's internal policies or procedures for receiving, evaluating, or investigating a report. Given those facts, CCLA is now being asked to share private data with the Board. Because of the broad powers granted to the Board by the plain language of section 122A.20, CCLA is required to provide the requested data to the Board regardless of its classification under Chapter 13. </p><hr /><h2> Opinion: </h2><p> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. McVeigh raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Concordia Creative Learning Academy (CCLA) is required to release private personnel data about the involved teachers to the Minnesota Board of Teaching under Minnesota Statutes, section 122A.20, subdivision 2. </p></td></tr></tbody></table><p> Signed: </p><p> Spencer Cronk <br /> Commissioner </p><p class="date"> Dated: October 8, 2012 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2679752665872665702664192022-01-25T15:49:53Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267306" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-09-18T15:14:43ZA County asked whether implementing a web-based automated crime mapping program would violate the rights of data subjects. The Commissioner opined that certain data subjects’ rights could be violated by the automated system as described by the County. The program, which uploads law enforcement data to the program automatically each evening, did not allow for the County to perform its duty to exercise discretion in certain situations as required by Minnesota Statutes, section 13.82. September 18, 2012; Stearns County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On July 30, 2012, the Information Policy Analysis Division (IPAD) received a letter from Matthew Quinn, Chief Deputy County Attorney for Stearns County, dated July 27, 2012. In his letter, Mr. Quinn asked the Commissioner to issue an advisory opinion regarding the use of an automated law enforcement data mapping program in Stearns County and the City of St. Cloud and the program's possible effect on data subjects' rights.</p> <p>In letters dated August 13, 2012, the Commissioner offered James Miller, Executive Director of the League of Minnesota Cities, and Jeff Spartz, Executive Director of the Association of Minnesota Counties, an opportunity to comment. Both declined to comment. <br /></p> <p>A summary of the facts follows. Mr. Quinn wrote in his opinion request:</p> <p class="opinion_quote">I am writing to request an advisory opinion regarding the use of an automated law enforcement data mapping program that publishes law enforcement data to the public via a program displayed on the [web]. The program in use in approximately 60 Minnesota municipalities and counties, known as CrimeReports(.com), is being considered for implementation in both Stearns County and the City of St. Cloud, MN.</p> <p class="opinion_quote">...</p> <p class="opinion_quote">CrimeReports combines law enforcement data with a mapping program and an analytics module so that members of the public can view data within a choice of descriptive formats. Put simply, nightly comprehensive law enforcement data is sent from law enforcement's records management system (RMS) and computer aided dispatch (CAD) systems to a CrimeReports server.</p> <p class="opinion_quote">...</p> <p class="opinion_quote">[T]he version of the application that is being considered for implementation - is the publicly viewable version which is proposed to be made available via a link within Stearns County's official website and populated with data from the Stearns County law enforcement RMS. The RMS stores arrest data, request for service data, response or incident data, and criminal investigative data. Other variable parameters that may be searchable in CrimeReports include date ranges which are limited potentially only by the availability of the data in the source database, as well as selected locations including cross streets, areas as small as frac14; mile from a landmark (school, park, or major street), within certain boundaries (neighborhood or crime watch area) and also <em>specific addresses</em>. It stores other data as well, but the named categories[, which] are the bulk of the data in question here, are regulated by Minn. Stat. [section] 13.82. [Emphasis provided.]</p> <p><br /></p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Quinn's opinion request, the Commissioner agreed to address the following issue</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Would a data subject's rights be violated if certain data about him/her were automatically uploaded to an automated crime mapping system as described above?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events or the existence of certain conditions.</p> <p>Section 13.82, subdivisions 2, 3 and 6, identify law enforcement data that are always public: arrest, request for service, and response or incident data. Inactive investigative data are also public, pursuant to subdivision 7. The data displayed in <em>CrimeReports</em> are automatically populated from these generally public data. However, one of the circumstances in which data are never public is when those data qualify for protection under subdivision 17. Subdivision 17 classifies certain identification data as private, including: the identity of a victim or alleged victim of criminal sexual conduct, the identity of a witness or victim of a crime who requests that his/her identity be withheld, the identity of a person who placed a call to the 911 system, the identity of certain juvenile witness, and the identity of individuals required by statute to report certain crimes to the authorities. The government entity is required to evaluate each situation and to exercise its discretion to determine whether an individual's identity qualifies for protection under subdivision 17.</p> <p>Additionally, Minnesota Statutes, section 260B.171, subdivision 5, provides:</p> <p class="opinion_quote">Except for records relating to an offense where proceedings are public under section 260B.163, subdivision 1, peace officers' records of children who are or may be delinquent or who may be engaged in criminal acts shall be kept separate from records of persons 18 years of age or older and are private data.</p> <p>Section 260B.171 also requires prior evaluation before determining whether data are private or accessible to the public.</p> <p>Minnesota Rules 1205.0200, subpart 4, states that data are, data on individuals if the data element identifies an individual in itself, or if it can be used in connection with other data elements to uniquely identify an individual. (See also, Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266974" title="07-001" target="_blank">07-001</a>.) In his opinion request, Mr. Quinn provided corresponding address and homeowner information, which are available to the public on the Stearns County Auditor-Treasurer website, for each of the examples he provided, illustrating how protected identifying information might be inadvertently disclosed. However, when data are sufficiently de-identified, the data are no longer data on individuals and therefore, an entity is not at risk of disclosing private or confidential data. <br /> <br /> Mr. Quinn provided three examples of the type of data that <em>CrimeReports</em> makes automatically available to the public, including the incident identification information and the corresponding maps.</p> <p>Example 1:</p> <p class="opinion_quote">Incident identification information <br /> Date: 10-10-2011 <br /> Address: xxx Block of xxxxx Ave (Stearns County, MN) <br /> Identifier (ICR) Number: ######## <br /> <em>CrimeReports</em> displays the call as Juvenile Problem</p> <p>While not publically available, the Computer-aided dispatch (CAD) notes indicate that this call was for the transportation of a child with mental health issues to a hospital via an ambulance. It is not clear in this example whether these data would reveal a protected identity (possibly under section 13.82, subdivision 17(f)), how remote a possibility that might be, or whether the data are sufficiently de-identified. But the County and the City have to make the required determinations about the classification of the data, <em>prior</em> to uploading them to <em>CrimeReports</em>.</p> <p>Example 2:</p> <p class="opinion_quote">Incident identification information <br /> Date: 10-09-2011 <br /> Address: xxxxx Block of CR xxx (Stearns County, MN) <br /> Identifier (ICR) Number: ######## <br /> <em>CrimeReports</em> displays the call as Juvenile-Alcohol Offender</p> <p>The CAD notes indicate that this call involved citations for minor alcohol consumption and other concerns related to substance use. The map corresponding to this incident report identifies five houses on the block specified. Assuming that one of the five addresses in the block reveals the juvenile's residence, there is a slight possibility of disclosing protected data.</p> <p>Example 3:</p> <p class="opinion_quote">Incident identification information <br /> Date: 2-12-2012 <br /> Address: xxxxx Block of xxx Road (Stearns County, MN) <br /> Identifier (ICR) Number: ######## <br /> <em>CrimeReports</em> displays the call as Juvenile Problem</p> <p>The CAD notes indicate that this incident report was sent to the County Attorney for review of possible felony charges. Section 260B.171 makes data on juveniles private where proceedings about an alleged offense are not public. At the point in time when the data are uploaded from Stearns County or the City of St. Cloud to <em>CrimeReports</em> (apparently, the day the call is reported), it is not necessarily clear whether the incident will be the subject of public proceedings or whether the incident identification information reveals the juvenile's address. Therefore, in this example, there is a possibility that displaying the data may violate that juvenile's rights as a data subject.</p> <p>These examples also highlight the challenges posed by <em>CrimeReports</em>' automated mapping system, especially in rural or less densely-populated areas where the identification of the block and the street could potentially reveal protected data even not in combination with any additional data. (Example 2 involves a block with five houses, but it is entirely plausible that an incident might be reported where there is only one property on the specified block.) In areas where rental housing may be more prevalent or where the population is denser (e.g., more multi-family residences), the risk of identification would likely be lessened. <br /> <br /> In many cases, a system displaying data made public by section 13.82, subdivisions 2, 3, 6, and 7, may be appropriate and the risk of revealing a protected identity remote. However, in addition to the examples Mr. Quinn provided, there are other situations where the entity is required by Chapter 13 to exercise discretion, notably the provisions of section 13.82, subdivision 17. For instance, before protecting the identity of a victim or witness who requests protection under subdivision 17(d), the government entity must complete a two-part evaluation. (See Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267758" title="01-069" target="_blank">01-069</a>.) <em>CrimeReports</em> apparently does not have a mechanism to conduct this required evaluation.</p> <p>The Commissioner opined on an issue similar to the one raised in this opinion, in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266834" title="10-016" target="_blank">10-016</a>. There, he stated that the mere possibility that a data subjects' rights might be violated did not preclude disclosure of the data. Rather, an entity's responsibility to respond appropriately to a data request requires that the entity, "must determine, on a case-by-case basis, whether certain data related to an incident must be protected," instead of declining to fulfill the request based on a potentiality. The situation here, though reversed, leads to the same conclusion; the City and the County cannot make all of the specified data automatically public, without first having made the required determinations regarding the classification of the data, however likely or unlikely the risk of inappropriate disclosure. <em>CrimeReports</em>, as described by Mr. Quinn, does not appear to allow for those determinations to be made and insofar as <em>CrimeReports</em> is unable to do so, data subjects' rights may be at risk.</p> <p>The Commissioner recognizes the difficulties entities face when attempting to use existing computer programs and web applications as more efficient means of providing access to public data. He agrees that the requirements of Chapter 13 cannot always be adequately addressed by a wholly automated system. However, the limitations of technology cannot relieve a government entity of its responsibility to exercise discretion under Chapter 13. The Commissioner encourages entities to use caution when evaluating how best to use these types of programs, to ensure that the rights of data subjects are not put at risk.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Quinn raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>A data subject's rights may be violated if certain data about him/her were automatically uploaded to an automated crime mapping system as described.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: September 18, 2012</p> <hr /> </td> </tr> </tbody> </table> </div>2673062666382667232022-01-18T19:24:43Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267320" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-08-20T15:14:43ZThe Commissioner determined that an entity appropriately denied a request for access to all data about a particular program, including data on employees who participated in the program, because the program as a whole is under active criminal investigation, pursuant to Minnesota Statutes, section 13.82, subdivision 7, and the data are therefore classified as confidential/protected nonpublic. The requester also asked for access to “Statements of Charges,” referred to in public memoranda, to the extent they contained the specific reasons for, and data that document the basis of, final disciplinary action the entity took against an employee. (Minnesota Statutes, section 13.43, subdivision 2(a) (5).) The Commissioner opined that because the memoranda refer to the employee’s actions as “outlined in the Statements of Charges,” and given the entity’s description of the data contained therein, at least some, if not all, of the data in the Statements are public.August 20, 2012; Minnesota Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2012). It is based on the facts and information available to the Commissioner as described below.</p> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On June 29, 2012, the Information Policy Analysis Division (IPAD) received a letter from Laura Yuen, of Minnesota Public Radio. In her letter, Ms. Yuen asked the Commissioner to issue an advisory opinion about her right to gain access to certain data the Minnesota Department of Public Safety (DPS) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Ramona L Dohman, DPS Commissioner, in response to Ms. Yuen's request. The purposes of this letter, dated July 2, 2012, were to inform her of Ms. Yuen's request and to ask her to provide information or support for DPS's position. On July 13, 2012, IPAD received a response, dated same, from E. Joseph Newton, General Counsel and Data Practices Compliance Official for DPS. (IPAD also solicited comments from the data subject, who did not respond.)</p> <p>A summary of the facts as Ms. Yuen provided them follows. She wrote that on May 17, 2012, she asked DPS for access to certain data (see below) pertaining to the state's Drug Recognition Evaluator (DRE) program, which is administered through the Minnesota State Patrol. The outcome of a criminal investigation into the program is pending, and that is the chief reason most of my requests were denied.</p> <p>In addition, Ms. Yuen asked for access to any and all charges and complaints filed against two state patrol employees. On June 8, 2012, DPS provided a summary pertaining to the existence and status of charges and complaints. The first employee was the subject of an active investigation. The second employee had received nine complaints; investigations into all nine were complete.</p> <p>Ms. Yuen stated to the Commissioner that on June 11, 2012, she wrote again to DPS:</p> <p class="opinion_quote">I clarified that I was not requesting summary information, but rather the data that stated the sustained charges, as well as the letters of reprimand. In the email, I wrote that I was seeking to inspect any and all data that documents the final disposition of any disciplinary action, the specific reasons for the action, and the data documenting the basis of the action.</p> <p class="opinion_quote">On June 13, 2012, [Mr.] Newton responded and provided me with three disciplinary memos issued against the second employee. Mr. Newton, however, did not provide the Statements of Charges that outline the employee's actions which resulted in the disciplinary action. After I asked for a written explanation as to why he was withholding the Statements of Charges, he responded, on June 14, 2012:</p> <p class="opinionquoteinquote">That data is part of the Internal Affairs Division's Personnel investigation. That would be private data on the employee. As stated below I have provided the discipline memos which constitute the specific reasons for the [discipline] and data documenting the basis for the action.' Minn. Stat. 13.43 subd. 2 a (5). The memos spell out the discipline and the basis for the discipline.</p> <p class="opinion_quote">My understanding is that Statements of Charges and other data are public under Minnesota Statute 13.43, subdivision 2(a)(5), particularly because the charging statements provide the basis for the disciplinary action. The letters specifically refer to the employee's actions as outlined in the Statement of Charges.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Yuen's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <div style="margin-left: 2em">1. Did the Minnesota Department of Public Safety (DPS) comply with Minnesota Statutes, Chapter 13, when it denied access to the following data?</div> <div style="margin-left: 2em">- Names of Minnesota State Patrol employees who facilitate the Drug Recognition Evaluator (DRE) program; <p>- Names of law enforcement officers who have received DRE certification since 2002; <br /> - Names of law enforcement officers enrolled in this year's class.</p> </div> <div style="margin-left: 2em">2. Did DPS comply with Minnesota Statutes, Chapter 13, in its response to a request for the following data related to disciplinary action it took against an employee? <div style="margin-left: 2em">- Statements of Charges, and any other data that document the final disposition of disciplinary action, the specific reasons for the action, and the data documenting the basis of the action.</div> </div> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <em><strong>Issue 1.</strong> Did the Minnesota Department of Public Safety (DPS) comply with Minnesota Statutes, Chapter 13, when it denied access to the following data?</em> <p><em>- Names of law enforcement officers who have received DRE certification since 2002; <br /> - Names of law enforcement officers enrolled in this year's class.</em></p> <p>In his comments to the Commissioner, Mr. Newton stated that DPS denied Ms. Yuen access to the data described above because:</p> <p class="opinion_quote">DPS, through the Bureau of Criminal Apprehension (BCA), had an active criminal investigation looking into the entirety of the DRE program, subjecting all past and present members and participants. The investigation has been referred to the prosecuting authority for determination of charges. Because the entire DRE program was subject to the investigation and everyone was subject to scrutiny, the data was withheld, as is required by statute.</p> <p>Minnesota Statutes, section 13.82, subdivision 7, provides that active criminal investigative data are classified as confidential or protected nonpublic. According to Mr. Newton, all of the data Ms. Yuen requested related to the DRE are active criminal investigative data. Accordingly, those data are not public.</p> <p>Mr. Newton also stated that even when the investigation is inactive, DPS would or could still deny access to data about the law enforcement officers involved (with the exception of any state troopers), because these law enforcement officers are or would be undercover and DPS will not put at risk those officers who have, are currently, or may be in the future, working in an undercover capacity.</p> <p>Pursuant to section 13.82, subdivision 7, inactive investigative data are public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 17, which, in relevant part, states, (a) when access to the data would reveal the identity of an undercover law enforcement officer, as provided in section 13.43, subdivision 5.</p> <p>Minnesota Statutes, section 13.43, subdivision 5, provides:</p> <p class="opinion_quote">All personnel data maintained by a government entity relating to an individual employed as or an applicant for employment as an undercover law enforcement officer are private data on individuals. When the individual is no longer assigned to an undercover position, the data described in subdivisions 2 and 3 become public unless the law enforcement agency determines that revealing the data would threaten the personal safety of the officer or jeopardize an active investigation.</p> <p>Accordingly, when the criminal investigation into the DRE is inactive, DPS must protect data about law enforcement officers who are currently employed as undercover officers. It may protect the identities of former undercover officers only if it determines that revealing the data would threaten the personal safety of the officer or jeopardize an active investigation.</p> <em><strong>Issue 2.</strong> Did DPS comply with Minnesota Statutes, Chapter 13, in its response to a request for the following data related to disciplinary action it took against an employee?</em> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public; subdivision 4 classifies most other types of personnel data as private. Pursuant to subdivision 2(a), (4) and (5), the following data are public: the existence and status of any complaints or charges against the employee and the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action Subdivision 2(b) provides when disciplinary action is final for purposes of section 13.43.</p> <p>In response to her request for access to data that document the specific reasons for and basis of the disciplinary action DPS took against the second trooper, DPS provided Ms. Yuen with three disciplinary memos.</p> <p>One memorandum, dated March 31, 2010, contains the following statement:[t]his is to inform you of my decision to take disciplinary action against you in the form of a 10 day unpaid suspension for your <em>violations of the General Orders outlined in the Statement of Charges</em> dated March 5, 2010. (Emphasis added.) It contains no other data about those violations.</p> <p>A letter of reprimand, dated January 4, 2012, states: [t]his memo shall serve as a written reprimand for your actions on August 4, 2011, <em>as outlined in the Statement of Charges</em> dated December 29, 2011. Your actions constituted violations of General Order R 02-10-029, IV.B.4 and 8, IV.E.1 and 2, and General Order 09-20-006, V.A. (Emphasis added.)</p> <p>The third document DPS provided to Ms. Yuen states:</p> <p class="opinion_quote">You are hereby reprimanded for your actions at an incident on October 9th 2008 This disciplinary action is being taken because of sustained charges: -Violation of GO #R 02-10-029 - Conduct sworn members:</p> <p class="opinion_quote">- IV.B Public Trust <br /></p> <p class="opinion_quote">- IV.E Exercise reasonable courtesy with public</p> <p>That document also contains a narrative of the trooper's actions that resulted in discipline.</p> <p>In his comments to the Commissioner, Mr. Newton wrote:</p> <p class="opinion_quote">To be clear, the Statement of Charges is not what its name may imply. The name is a misnomer from the historical past that is not used as a charging document in any proceeding before any tribunal. The Statement of Charges is prepared only to summarize the investigation for the benefit of the employee;..[sic] it is a summary of the investigative file. This is done so the employee can properly grieve the discipline or otherwise respond.</p> <p class="opinion_quote">The Statement of Charges and other investigative data neither states the specific reasons for the discipline, nor do they contain data documenting the basis for the action. In fact, the requester received the public personnel data that included the reasons for and the basis of the discipline. The three documents that were provided specifically stated the discipline and the reason therefore, and indeed, are the documents that are used by (and signed by) the disciplining authority to memorialize the disciplinary action. In this case, the documents included the fact that the employee was disciplined for violations of General Orders and the specific portions of those orders.</p> <p>Mr. Newton concluded by stating, he Statement of Charges and related data are private personnel data pursuant to Minn. Stat. 13.43 subd 2 (a) [sic]. The Commissioner respectfully disagrees. Minnesota Statutes, Chapter 13, classifies data, not documents. Accordingly, regardless whether Statement of Charges is a misnomer, and irrespective of the reason(s) DPS created the Statements, or how they are used, any data contained in them that constitute the specific reasons for or document the basis of final disciplinary action are public.</p> <p>Furthermore the March 31, 2010, document states only that DPS was taking disciplinary action due to the employee's violations of the General Orders outlined in the Statement of Charges, and contrary to Mr. Newton's assertion, contains no data about the specific reasons for or basis of that disciplinary action. (In correspondence to Ms. Yuen, Mr. Newton noted that the memo related to violations of several provisions of General Orders, which he specified.)</p> <p>Accordingly, given that the memoranda refer to the employee's actions as outlined in the Statements of Charges, and Mr. Newton's description of the data contained therein, at least some, if not all, of those data are public. Thus, DPS should provide Ms. Yuen with the public data in those Statements.</p> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues raised by Ms. Yuen is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <div style="margin-left: 2em">1. The Minnesota Department of Public Safety (DPS) complied with Minnesota Statutes, Chapter 13, when it denied access to active criminal investigative data related to the Drug Recognition Evaluator (DRE) program. <div style="margin-left: 2em">2. DPS did not comply with Minnesota Statutes, Chapter 13, because it denied access to reasons for and data documenting the basis of final disciplinary action it took against an employee contained in the Statements of Charges.</div> </div> </td> </tr> </tbody> </table> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: August 20, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2673202670562022-01-18T19:24:43Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267954" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-07-11T15:14:43Z A County asked about the classification of the name and cancelled check of a donor to a County project who wished to remain anonymous. The Commissioner determined that the data are not classified under Minnesota Statutes, section 13.792, and are presumptively public. The Commissioner also commented that, given some of the data relate to the donor’s checking account and bank routing numbers, the County might want to consider whether those data might be classified underJuly 11, 2012; Wabasha County36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><h2> Facts and Procedural History: </h2><p> On May 24, 2012, the Information Policy Analysis Division (IPAD) received a letter from Michael Plante, attorney for Wabasha County. In his letter, Mr. Plante asked the Commissioner to issue an advisory opinion regarding the classification of certain data the County maintains. </p><p> A summary of the facts follows. According to Mr. Plante, a donor, who wished to remain anonymous, sent a check to the County for a specific purpose. Subsequently, an individual made a data request for the donor's identity or a copy of the check. </p><hr /><h2> Issue: </h2><p> Based on Mr. Plante's opinion request, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Wabasha County? </p><ul><li> The name of a donor to the County, who wishes to remain anonymous, and data contained in the donor's check </li></ul></td></tr></tbody></table><hr /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Mr. Plante wrote: </p><p class="opinion_quote"> The County has also reviewed Advisory Opinion 10-018 which, in part, reviews the applicability of Minnesota Statutes [section] 13.792. That Statute classifies, as not public, certain gift data maintained by several specific organizations, i.e., the Minnesota Zoological Garden, the University of Minnesota, the Minnesota State Colleges and Universities, the Twin Cities Regional Parks Foundation, and State Services for the Blind. The statute also specifically states that names of donors and gift ranges are public data. However, it is Wabasha County's belief that is [sic] not one of the entities that was intended to be covered by section 13.792. </p><p class="opinion_quote"> Additionally, the County recognizes that Minnesota Statutes, section 15.17, requires that government entities create and maintain records that document their official activities. Under section 15.17, these data are records necessary to a full and accurate knowledge of [the entity's] official activities and, as such, should be maintained by the County. </p><p class="opinion_quote"> With this information in mind it is the County's belief that the data in question is presumptively a public document. However, the County is requesting an opinion as to whether the County is subject to Minnesota Statute 13.792 and whether or not it can accept a donation from a donor that is requesting to remain anonymous. </p><p> As Mr. Plante noted, Minnesota Statutes, section 13.792, classifies certain data maintained by several specific entities; Wabasha County is not one of them. Accordingly, the data in question are presumptively public. However, given that some of the data relate to the donor's checking account and bank routing numbers, the County might want to consider whether Minnesota Statutes, section 13.37, subdivision 1(a), applies to those data. <br /></p><hr /><h2> Opinion: </h2><p> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Plante raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Pursuant to Minnesota Statutes, Chapter 13, the following data maintained by Wabasha County are presumptively public: the name of a donor to the County, who wishes to remain anonymous, and data contained in the donor's check. </p></td></tr></tbody></table><p /><p> Signed: </p><p> Spencer Cronk <br /> Commissioner </p><p class="date"> Dated: July 11, 2012 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2679542022-01-18T19:24:40Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267021" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-05-29T15:14:43Z A gathering of “ditch viewers” appointed by a Watershed District Board (drainage authority) pursuant to Minnesota Statutes, Chapter 103E, is not subject to the Open Meeting Law (Minnesota Statutes, Chapter 13D). The ditch viewers are not a separate public body subject to the OML, and given the nature of the viewers’ statutory duties, they are also not a committee, subcommittee, board, department or commission of the Board. The Board appoints the viewers, whose duties and responsibilities are described in statute, but it has the final authority to make determinations regarding any drainage project. May 29, 2012; Middle Snake Tamarac Rivers Watershed District (MSTRWD)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On April 16, 2012, the Information Policy Analysis Division (IPAD) received a letter dated April 11, 2012, from Wayne H. Swanson, an attorney, on behalf of a number of clients. In his letter, Mr. Swanson asked the Commissioner to issue an advisory opinion regarding the Middle Snake Tamarac Rivers Watershed District (MSTRWD) Board's conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML).</p> <p>IPAD, on behalf of the Commissioner, wrote to Roger Hille, President of the Board, in response to Mr. Swanson's request. The purposes of this letter, dated April 23, 2012, were to inform him of Mr. Swanson's request and to ask him to provide information or support for the Board's position. On May 7, 2012, IPAD received a response, dated May 1, 2012, from Gerald W. Von Korff, attorney for the Board.</p> <p>A summary of the facts as Mr. Swanson provided them follows. In his opinion request, Mr. Swanson wrote:</p> <p class="opinion_quote">Viewers appointed by a watershed district or a county have statutory authority. Qualifications and duties are found in Minnesota Statutes 103E.305 and 103E.311. 103E.11 states, The viewers, with or without the engineer, shall determine the benefits and damages to all property affected by the proposed drainage project and make a viewers' report.</p> <p>Mr. Swanson referred to <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266807" title="08-007" target="_blank">Advisory Opinion 08-007</a>, and stated,</p> <p class="opinion_quote">...the Commissioner has ruled in this similar situation that when statutory authority is given to a committee or group, the appointed committee or group is, in fact, subject to Minnesota's Open Meeting Law. [And] the duties and responsibilities of viewers are clearly defined in Minnesota Statutes, Chapter 103E, as well as their statutory authority.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Swanson's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Are meetings of the ditch viewers, appointed by the Middle Snake Tamarac Rivers Watershed District (MSTRWD) Board of Managers pursuant to statutory authority, subject to Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML)?</p> <p>2. Did the MSTRWD Board comply with Minnesota Statutes, section 13D.04, regarding notice of a meeting of the appointed ditch viewers held on February 28, 2012, and subsequent meetings of the viewers?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no dispute between the parties that the Middle Snake Tamarac Rivers Watershed District Board is subject to the Open Meeting Law.</p> <p><strong>Issue 1</strong>. <em>Are meetings of the ditch viewers, appointed by the Middle Snake Tamarac Rivers Watershed District (MSTRWD) Board of Managers pursuant to statutory authority, subject to Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML)?</em></p> <p>According to Minnesota Statutes, section 13D.01, subdivision 1, the OML applies to:</p> <p class="opinion_quote">All meetings, including executive sessions <br /> . . . <br /> (c) of any <br /> (1) committee, <br /> (2) subcommittee, <br /> . . . <br /> of a public body;</p> <p>In his comments to the Commissioner, Mr. Von Korff wrote:</p> <p class="opinion_quote">A Watershed District is governed by Managers, who have legislative and adjudicative powers under Chapter 103D. The Managers meet and make decisions in the same way that City Councils, County Commissioners, or school boards meet and make decisions. The meetings of managers are subject to the open meeting law, to the same extent as school boards or City Councils, of course.</p> <p class="opinion_quote">....</p> <p class="opinion_quote">....The primary function of viewers or appraisers is to visit and view the farms and other lands of potentially impacted landowners and to make a recommendation to the managers on the extent of benefits to each parcel of land. For this reason, they are granted the right of entry on potentially impacted lands. The majority of their work thus occurs at farm locations, where they inspect (view) the farm or other property, make notes of soil conditions, inquire of the landowner and discuss particular land conditions at each location. They also visit county and other land records to obtain land valuation information. The suggestion that viewers [sic] activities are public meetings would cripple and destroy the statutory purpose. The result would be that the viewers could not visit sites together, and that if any two of the viewers exercised their right of inspection together, it would constitute a public meeting, located on the property of a private citizen.</p> <p class="opinion_quote">....</p> <p class="opinion_quote">....Often viewers wait until significant rain events or flooding conditions in order to collect data regarding direction and velocity of surface drainage. That means that in many circumstances, it is essential that viewers must be able to visit landowner locations at times that they cannot set in advance.</p> <p class="opinion_quote">....The viewers don't even have to agree or adopt the same conclusions. If individual viewers come to different conclusions, each one can file his own report.</p> <p>Mr. Von Korff further wrote:</p> <p class="opinion_quote">Mr. Swanson suggests that [<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266807" title="08-007" target="_blank">Advisory Opinion 08-007</a>] should drive the outcome of his request. We completely disagree. As pointed out above, [08-007] deals with a statutorily created entity, an advisory board specifically created as an entity by the legislature. There is no identified viewing entity that has legal existence. The IPAD opinion specifically states that the reason that the open meeting law applied to [an advisory panel of the Saint Paul Port Authority] was that the [panel] had standalone legal authority to issue recommendations on these study topics that are separate from those presented by [the Authority.] That is not the case here. Viewers have no independent function apart from the managers. Their recommendations must implement manager policy, and if the managers find that the viewers have failed to implement that policy, they can, and often do, instruct them to go back and do their job over again, implementing manager decided policy.</p> <p class="opinion_quote">....</p> <p class="opinion_quote">Mr. Swanson is suggesting, evidently, that in order to conduct their viewing process, the viewers would need to contact each landowner and arrange for a public meeting date for the viewers to visit the property, and then the viewers would have to publicly announce the time and place of that meeting, and further advise the landowner to prepare for the possibility that the property will be inspected by a group of citizens who will follow along with the viewers. If the landowner were to cancel the viewing, for some reason, then the viewers would have to notify the public that the meeting is cancelled, and failing that, members of the public would arrive at the private property for the expected meeting.</p> <p class="opinion_quote">On the District's current Brandt/Angus project, for example, there are now 116 different 40 acre tracts or sub-parcels, with 38 different ownership entities (individual owner, joint owners, tenants in common, life tenants/remaindermen, trustee(s), or corporations). Consequently, for many of these parcels, meeting with the owner means meeting with more than just one person on each piece of land. It would be preposterous and unworkable if for every individual viewer recommendation there have to be 3 days posted notice each time two viewers want to meet with an owner.</p> <p>Minnesota Statutes, Chapter 103E, sets forth how a drainage authority, like the Board, must conduct drainage proceedings. The Board appoints the viewers, whose duties and responsibilities are described in statute, but it has the final authority to make determinations regarding any drainage project.</p> <p>Mr. Swanson argued that the ditch viewers are like the Port Authority's advisory panel, because the duties and responsibilities of viewers are clearly defined in Minnesota Statutes, Chapter 103E, as well as their statutory authority and are therefore subject to the OML.</p> <p>However, according to the Port Authority's advisory panel's enabling legislation, it was required to meet regularly <em>as a group</em>, and was able to include its separate recommendations as part of the Port Authority recommendations. (See 2007 Session Laws, Chapter 57, Article 2, Section 3.) The advisory panel is subject to the OML because it is a committee of the Port Authority; it is not a separate public body. <br /></p> <p>The ditch viewers are not a separate public body subject to the OML. Given the nature of the viewers' duties, as set forth in Chapter 103E, and per Mr. Von Korff's description of the way they perform those duties, they are also not a committee, subcommittee, board, department or commission of the Board. They gather largely on an <em>ad hoc</em> basis on private property, they are permitted to act individually, and the Board may accept, amend or reject the viewers' report(s), all of which distinguishes them from the Port Authority's advisory panel. Furthermore, the viewers perform duties more like employees or contractors, not a sub-body, under the control of the Board. Accordingly, gatherings of the ditch viewers are not subject to the Open Meeting Law.</p> <p><strong>Issue 2.</strong><em>Did the MSTRWD Board comply with Minnesota Statutes, section 13D.04, regarding notice of a meeting of the appointed ditch viewers held on February 28, 2012, and subsequent meetings of the viewers?</em></p> <p>See Issue 1. <br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Swanson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Meetings of the ditch viewers, appointed by the Middle Snake Tamarac Rivers Watershed District (MSTRWD) Board of Managers pursuant to statutory authority, are not subject to Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law.</p> <p>2. See Issue 1. Thus, the MSTRWD Board did not have to comply with the notice requirements set forth in Minnesota Statutes, section 13D.04, regarding a February 28, 2012, gathering of the ditch viewers.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 29, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2670212670202022-01-18T19:24:40Z266258266315266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267661" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-05-16T15:14:43ZAn individual who was pulled over by peace officers and subjected to a strip search asked for access to the squad car video of the incident. The City denied access, saying it was private personnel data because there is an active internal affairs investigation. The videotape contains arrest and/or response/incident data, and as such, may not be classified as private personnel data, even if the City is now using those data in its internal affairs investigation of the officers.May 16, 2012; City of Minneapolis Police Department36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On March 19, 2012, the Information Policy Analysis Division (IPAD) received a letter dated March 14, 2012, from Ryan Vettleson, an attorney, on behalf of a client. In his letter, Mr. Vettleson asked the Commissioner to issue an advisory opinion regarding the response to a data request Mr. Vettleson made to the City of Minneapolis Police Department. IPAD asked for additional information/clarification, which Mr. Vettleson provided in a letter dated March 27, 2012.</p> <p>In a letter dated April 5, 2012, the Commissioner invited Craig Steiner, Responsible Authority for the City, as well as Y and Z , data subjects whose rights may be affected by this opinion, an opportunity to comment. IPAD received comments on April 25, 2012, from Caroline Bachun, Assistant City Attorney. The data subjects did not submit comments.</p> <p>Mr. Vettleson provides the facts as follows:</p> <p class="opinion_quote">....[My client] was pulled over and subjected to a strip search by Minneapolis police officers .... The officers never found any drugs or other criminal contraband on [my client] and released him at the scene. The incident was captured on the officer's squad video. Shortly after the incident, [my client] filed a complaint with the Minneapolis Civilian Police Review Authority.</p> <p class="opinion_quote">On June 8, 2010, this firm faxed to the Minneapolis Police Department, Police Reports Videos, a letter requesting: "a complete copy (public and non-public) of your file relating to the investigation of the [April 9, 2009] incident, including ... videotapes."</p> <p class="opinion_quote">On August 18, 2010, this firm contacted Sergeant William Palmer, Public Information Officer for the Minneapolis Police Department, and again requested the squad video(s) of the April 9, 2009 incident. .... On August 31, 2010, Sergeant Palmer responded that the requested data would not be disclosed, on the ground there was an active internal investigation regarding the incident, and, as such, the requested data was non-public under Minn. Stat. section 13.43, subd. [2(a)(5)], unless the complaint is sustained and the final disposition of any discipline has been reached. [Emphasis omitted.]</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Vettleson's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in its response to a June 8, 2010, request for data contained in a law enforcement squad car video?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events.</p> <p>Of relevance here, section 13.82, subdivisions 2 and 6, provide that arrest and response or incident data are public. Arrest data are, data created or collected by law enforcement agencies which documents any actions taken by them to cite, arrest, incarcerate <em>or otherwise substantially deprive an adult individual of liberty [and] shall be public at all times in the originating agency</em>.... [Emphasis added.]</p> <p>Response or incident data are, data created or collected by law enforcement agencies which documents the agency's response to a request for service including, but not limited to, responses to traffic accidents, or which describes actions taken by the agency on its own initiative [and] <em>shall be public</em> [Emphasis added.]</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. Pursuant to subdivision 2(a)(5), the following data are public: "the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body." Subdivision 2(b) provides when disciplinary action is final for purposes of section 13.43.</p> <p>Both Mr. Vettleson and the City reference the Minneapolis Police Department's policies regarding the use of Mobile Video Recording equipment (MVR), section 4-218, which states:</p> <p class="opinion_quote">The purpose of utilizing mobile video recording (MVR) equipment in Minneapolis Police Department vehicles is to:</p> <ul> <li class="opinion_quote">capture video evidence for criminal, civil and traffic-related court cases.</li> <li class="opinion_quote">assist officers with recalling facts or other details captured by the equipment that will help them accurately articulate a chain of events when writing reports.</li> <li class="opinion_quote">allow supervisors to review the contents of the recorded media as a management tool within their chain of command.</li> <li class="opinion_quote">be used as a training tool for officer safety and best practices in the MPD.</li> <li class="opinion_quote">assist in the assessment of contacts between officers and the public by reviewing procedures and interpersonal action.</li> </ul> <p>The City argues that the data are private personnel data:</p> <p class="opinion_quote">....The purposes for the collection of squad video and implementation of those purposes are enumerated in Section 4-218 of the Minneapolis Police Department Policies and Procedures. Because one of the purposes relates to the conduct of police officers, and the video being sought by [Mr. Vettleson's law firm] is part of an active [Civilian Review Authority] investigation, the video at issue is private personnel data under Minn. Stat. section 13.43 and cannot be released at this time.</p> <p>Mr. Vettleson argues the data constitute public law enforcement data pursuant to section 13.82:</p> <p class="opinion_quote">.... The first and second purposes - to capture video evidence and to help refresh the recollection of officers when they author reports - are undoubtedly the primary reasons the Minneapolis Police Department utilizes squad cameras. These purposes are necessarily connected to law enforcement activities. ....</p> <p>Minnesota Statutes, Chapter 645, provides guidance on statutory interpretation. Section 645.26, subdivision 1, provides that if two provisions are irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267616" title="03-021" target="_blank">Advisory Opinion 03-021</a>, the Commissioner opined:</p> <p class="opinion_quote">The Commissioner acknowledges the care with which the Legislature has adopted policy concerning the classification of personnel data. It is also clear, based on the language in section 13.82, that the Legislature intended certain data about law enforcement employees to be public. .... Furthermore, while section 13.43 is specific in its classification of personnel data, section 13.82 is more specific in that it classifies personnel data maintained by law enforcement agencies in particular.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267234" title="08-032" target="_blank">Advisory Opinion 08-032</a>, the Commissioner addressed this issue as it related to inactive criminal investigative data, which are also explicitly public under section 13.82:</p> <p class="opinion_quote">.... Section 13.82 temporarily classifies active investigative data as not public; once any of three events occurs, data that had been protected become public when the investigation is no longer active. However, private personnel data don't become public unless the entity takes final disciplinary action against an employee. If an entity could protect otherwise public inactive criminal investigative data as private personnel data, the Legislature's intent, i.e., that protected criminal investigative data become public, could be thwarted (in a situation in which the entity does not take final disciplinary action.)</p> <p>The Commissioner acknowledges the complexity of the issues in situations when a government entity that is conducting an investigation into employee misconduct is both the employer and a law enforcement agency, as is the case here. He stated in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267616" title="03-021" target="_blank">Advisory Opinion 03-021</a>:</p> <p class="opinion_quote">... because the Legislature adopted section 13.82 after adopting section 13.43, it clearly understood that certain information about personnel carrying out law enforcement functions would be public. Another indication the Legislature was aware that certain law enforcement personnel data would be public is that the Legislature specifically excluded undercover law enforcement officers from having to make data about themselves public pursuant to section 13.82, subdivision 6(b). Thus, the Commissioner opines that the data at issue are public pursuant to section 13.82.</p> <p>The analysis here is similar. The squad car video data were created for law enforcement purposes. The first two purposes listed in the City's policies (collecting evidence and assisting officers with writing reports) apply to every situation in which a peace officer engages in a law enforcement activity, such as a traffic stop, and appear to be the primary reasons for creating the data.</p> <p>When the Legislature classified certain law enforcement data as public pursuant to section 13.82, it did not create an exception for law enforcement data that may also be part of an internal investigation of an enforcement officer. Accordingly, the videotape contains arrest and/or response/incident data, and as such, may not be classified as private personnel data, even if the City is now using those data in its internal affairs investigation against the officers.</p> <p><br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Vettleson is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Minneapolis did not comply with Minnesota Statutes, Chapter 13, in its response to a June 8, 2010, request for data contained in a law enforcement squad car video.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 16, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2676612663082665872664912022-01-18T19:24:40Z266258266259266293266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267541" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-05-03T01:14:43ZIn response to a request for a copy of the superintendent’s contract, a school district provided access to public personnel data it extracted from the contract, but refused to provide a redacted copy of the contract itself. The District should have provided a copy of the actual contract, with appropriate redactions if applicable.May 2, 2012; School District 276 (Minnetonka)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On March 28, 2012, the Information Policy Analysis Division (IPAD) received a letter dated same, from Carter Glendenning. In his letter, Mr. Glendenning asked the Commissioner to issue an advisory opinion about his right to gain access to certain data Independent School District 276, Minnetonka, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Dennis Peterson, District Superintendent, in response to Mr. Glendenning's request. The purposes of this letter, dated March 30, 2012, were to inform him of Mr. Glendenning's request and to ask him to provide information or support for the District's position. On April 12, 2012, IPAD received a response, dated April 10, 2012, from Dennis O'Brien, attorney for the District.</p> <p>A summary of the facts as Mr. Glendenning provided them follows. In an email dated November 30, 2011, Mr. Glendenning asked Dr. Peterson for a copy of his compensation contract. Dr. Peterson responded the same day, stating, [o]ur attorney will be in contact with you. The contract is not a public document. You may obtain all of the data from it that is public.</p> <p>In a letter dated December 9, 2011, Mr. O'Brien wrote to Mr. Glendenning, and stated, [s]ince you have requested information relative to Dr. Peterson's employment with the Minnetonka School District, I am summarizing that data which is public. Mr. O'Brien listed 21 categories of data with details about each, such as, salary, incentive compensation, vacation, medical leave, tax-sheltered annuity, severance and post-employment benefits, etc. <br /></p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Glendenning's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Independent School District 276, Minnetonka, comply with Minnesota Statutes, Chapter 13, in its response to a request for a copy of its Superintendent's employment contract?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>Mr. O'Brien, on behalf of the District, provided Mr. Glendenning with a summary of data in the contract. However, Mr. Glendenning asked for a copy of the contract, not a summary of its contents.</p> <p>Mr. O'Brien wrote to the Commissioner:</p> <p class="opinion_quote">The question at issue is whether the superintendent's contract is a public document. Under the plain terms of the statute, the contract <em>itself</em> is not public data. Some of the information contained <em>within</em> the document is public data, as enumerated in the statute.</p> <p class="opinion_quote">Any other information remains private data and need not be revealed except pursuant to a court order. It is not incidental to note that the Personnel Data Privacy Act [sic] does not broadly define documents themselves as public, but only the data contained therein.</p> <p>The Commissioner has opined numerous times that Chapter 13 classifies data, not documents. However, in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267866" title="04-031" target="_blank">04-031</a>, the Commissioner wrote:</p> <p class="opinion_quote">[Minnesota Statutes,] Section 13.03, subdivision 3, states that individuals shall be permitted to inspect and copy public government data. This means that when an individual asks to inspect public data, the entity shall provide the requestor with the actual data. This ensures that the requestor will be able to gain an understanding of the context relating to the data s/he is seeking, especially if the entity has redacted (blacked/whited out) surrounding data.</p> <p class="opinion_quote">The Commissioner is aware that some entities might prefer to lift public data from a document and place those data on an otherwise blank document for the individual to inspect (cut-and-paste). This is problematic because (1) the entity is withholding the actual data and (2) the possibility exists that the entity will make an error transferring the data from its original source onto another document.</p> <p>Accordingly, the District should have provided Mr. Glendenning a copy of the actual contract, rather than a summarization of public data contained therein. Mr. O'Brien stated that all data in the contract other than those he summarized are private under Minnesota Statutes, section 13.43. It is possible that the contract contains private data on Dr. Peterson, and if so, the District should redact those data. That enables Mr. Glendenning, or any member of the public, to understand the context of any redactions. It is also possible that the contract contains data that are not about Dr. Peterson, and which are presumptively public. (See Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267490" title="08-023" target="_blank">08-023</a>.) <br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue raised by Mr. Glendenning is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Independent School District 276, Minnetonka, did not comply with Minnesota Statutes, Chapter 13, in its response to a request for a copy of its Superintendent's employment contract.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 2, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2675412668432669832667412022-04-27T21:19:50Z266258266282266282266284266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267496" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-05-02T15:14:43ZA newspaper asked if a school district complied with the Open Meeting Law regarding its summary of the superintendent's performance evaluation. The Board conducted the evaluation during a closed “workshop” meeting held before its regular meeting, and provided a summary at a regular meeting the next month (see Minnesota Statutes, section 13D.05, subdivision 3(a)). The workshop was a special meeting pursuant to Minnesota Statutes, section 13D.04, subdivision 1, and therefore separate from the regular meeting that immediately followed adjournment of the special meeting. Thus, the Board should have provided the summary at that regular meeting, because it was its next open meeting. Also, public bodies should convene and adjourn or otherwise conclude meetings in open session.May 2, 2012; South Washington County School Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 6, 2012, the Information Policy Analysis Division (IPAD) received a letter dated February 2, 2012, from Scott Wente, of the <em>South Washington County Bulletin</em>. In his letter, Mr. Wente asked the Commissioner to issue an advisory opinion about the South Washington County School Board's conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Mr. Wente submitted an addendum to his request on February 17, 2012.</p> <p>IPAD, on behalf of the Commissioner, wrote to Leslee Boyd, Board Chair, in response to Mr. Wente's request. The purposes of this letter, dated February 17, 2012, were to inform her of Mr. Wente's request and to ask her, members of the Board, or their attorney to provide information or support for the Board's position. On March 6, 2012, IPAD received a response, dated March 5, 2012, from Michael J. Waldspurger, attorney for the School Board.</p> <p>On March 16, 2012, Mr. Wente submitted additional information, including a copy of the School Board's regular meeting schedule, to be included as part of the record. In response, the Commissioner wrote again to Ms. Boyd, in a letter dated March 19, 2012, seeking comments on the additional information. Mr. Waldspurger responded on April 4, 2012.</p> <p>A summary of the facts as Mr. Wente provided them follows. Mr. Wente wrote:</p> <p class="opinion_quote">The Bulletin's initial request for an advisory opinion sought to clarify whether the District 833 School Board had followed the law by summarizing Superintendent Mark Porter's annual performance evaluation at a Jan. 26, 2012 regular meeting....</p> <p class="opinion_quote">The School Board discussed Porter's performance review in a closed workshop Dec. 15, 2011. It then adjourned from that workshop and minutes later convened for a regular meeting, which was open to the public.</p> <p class="opinion_quote">Section 13D.05, subd. 3(a) of the Open Meeting Law allows a public body to close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation [Emphasis omitted.]</p> <p class="opinion_quote">Since the School Board convened and adjourned its Dec. 15 closed-session workshop, we believe the body's next open meeting occurred when the School Board convened an open, regular meeting that same evening.</p> <p class="opinion_quote">If that Dec. 15 regular meeting is determined not to be the School Board's next open meeting following its closed session to discuss the performance evaluation, then certainly the Jan. 12 [special] meeting and workshop [which were open to the public] would have constituted the next open meeting. Yet, as noted previously the School Board did not summarize the performance evaluation until a Jan. 26 meeting. <br /></p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Wente's request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the South Washington County School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the superintendent's performance evaluation it conducted at a meeting held December 15, 2011?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to the OML, public bodies hold three types of meetings: regular meetings, special meetings, and emergency meetings. Every public body is required to provide members of the public with notice of its meetings, regardless of the type of meeting. (Minnesota Statutes, section 13D.04.)</p> <p>For regular meetings, the only notice requirement is that the public body keeps a schedule of its regular meetings on file at its primary offices. The schedule must include the date, time, and location of all regular meetings. (See section 13D.04, subdivision 1.)</p> <p>A special meeting is any meeting, other than an emergency meeting, that is not a regularly scheduled meeting. For a special meeting, the public body shall post written notice, at least three days before the meeting, of its date, time, place, and purpose. (See section 13D.04, subdivision 2.) <br /></p> <p>As noted above, pursuant to Minnesota Statutes, section 13D.05, subdivision 3(a), a public body may meet in closed session to conduct a performance evaluation. At its next open meeting, the body shall summarize its conclusions regarding the evaluation.</p> <p>The schedule of regular School Board meetings Mr. Wente provided contains the heading:</p> <p class="opinion_quote"><strong>Workshops at 6:00 p.m. <br /> Regular meetings at 7:00 p.m. (workshops may be added)</strong></p> <p>The December 15, 2011, Board meeting is listed on the schedule as a regular meeting; no workshop is listed on the schedule for that date.</p> <p>According to the Board minutes, a quorum of the Board met in a workshop on December 15, 2011, which was called to order at 5:30 p.m., and adjourned at 6:55 pm. The Board then called a regular meeting to order eight minutes later, at 7:03 p.m.</p> <p>In his comments to the Commissioner, Mr. Waldspurger wrote:</p> <p class="opinion_quote">The Board was not required to provide additional notice that part of the regular [December 15, 2011] meeting would be closed. Nothing in the law states or implies that the absence of additional notice for a closed session converts the closed session into a special meeting. [Citations omitted.]</p> <p class="opinion_quote">In summary, the Board was not required to summarize its conclusions regarding the superintendent's evaluation during the open meeting that occurred on December 15, 2011. Only one meeting of the Board occurred on December 15, 2011. The portion of the meeting during which the Board met in closed session was referred to as a workshop, and the portions of the meeting during which the Board met in open session was referred to as a regular meeting. The fact that the District used this terminology to describe different parts of the meeting does not mean that two meetings were held. <br /></p> <p>While Mr. Waldspurger is correct that that the Board is not required to give additional notice that a portion of a regular meeting will be closed, the Commissioner respectfully disagrees that the December 15, 2011, closed workshop meeting was a regular meeting. As noted above, the workshop was not on the schedule of regular meetings for December 15. Furthermore, it started at 5:30 p.m., 30 minutes before regular workshops are scheduled to start. Accordingly, the workshop was a special meeting, pursuant to Minnesota Statutes, section 13D.04, subdivision 1.</p> <p>Mr. Waldspurger discussed efforts the Board took to ensure compliance with the OML. He wrote:</p> <p class="opinion_quote">The Board acknowledges that an inadvertent error occurred in this case. Through its Chair, the Board undertook diligent efforts to ensure compliance with the OML. Those efforts included consulting with a well regarded and experienced representative from the [Minnesota School Boards Association.] Unfortunately, in this instance, the representative made a misstatement, and the Board relied on that misstatement. As a result, the Board did not summarize its conclusions regarding the evaluation at the meeting on January 12, 2012.</p> <p>The Commissioner has the following comments. First, he acknowledges that the Board sought advice to assist it in determining its obligations regarding when it needed to provide its summary of the superintendent's performance evaluation. Second, the Board needs to review its process and procedures regarding its schedule of regular meetings, and its workshops in order to avoid the kind of confusion that resulted here.</p> <p>Third, according to the plain language of section 13D. 05, subdivision 3(a), the next open meeting of a public body may be a regular, special or emergency meeting. Given the special circumstances that warrant an emergency meeting, it is likely to be unreasonable for a public body to be obliged to summarize a performance evaluation at an emergency meeting. The Legislature might want to consider amending that provision to avoid such a result.</p> <p>Finally, a comment regarding the Board's having convened and adjourned the December 15, 2011, workshop while in closed session. According to Mr. Wente:</p> <p class="opinion_quote">That Dec. 15 meeting was a closed session workshop. Board members gathered in a conference room used for closed-session meetings, convened the workshop in that room, discussed the performance evaluation and other agenda items that can be discussed in closed session, and then adjourned while still in the room closed to the public.</p> <p>Pursuant to Minnesota Statutes, section 13D.01, subdivision 3, Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. Accordingly, the Board should have convened the special workshop meeting in open session, stated on the record its grounds for closing the meeting and the specific subject(s) to be discussed, and then closed the meeting.</p> <p>Although the OML is silent on whether a public body may adjourn a meeting in closed session, it is the Commissioner's opinion that meetings should be adjourned or otherwise concluded in open session. Otherwise, the public cannot know if a meeting is adjourned, recessed or continued. As the issues Mr. Wente raised illustrate, whether or not a meeting has been adjourned, rather than recessed or continued, has implications for a public body's conduct at subsequent meetings. (See Minnesota Statutes, section 13D.05, subdivision 2(b), and section 13D.04, subdivision 4.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Wente raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The South Washington County School Board did not comply with Minnesota Statutes, section 13D.05, subdivision 3(a), regarding its summary of the superintendent's performance evaluation it conducted at a special meeting held December 15, 2011, because the Board did not provide the summary at its next meeting, which was its regular meeting that immediately followed the special meeting.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 2, 2012</p> <hr /> </td> </tr> </tbody> </table> </div>2674962662882663652670202670242022-01-18T19:24:38Z266258266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266957" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-04-21T01:14:43ZA city asked about the classification of certain data it collected and maintained about a candidate for public office. The candidate submitted an Affidavit of Candidacy and a copy of her driver’s license as proof of residency. Both the Affidavit and the copy of the driver’s license are public pursuant to the general presumptionApril 20, 2012; City of Emily36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <h2>Facts and Procedural History:</h2> <p>On March 16, 2012, the Information Policy Analysis Division (IPAD) received a letter dated March 12, 2012, from Steven Qualley, attorney for the City of Emily. In his letter, Mr. Qualley asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD asked for additional information, which Mr. Qualley provided on March 19, 2012. On April 4, 2012, IPAD invited Jan Mosman, data subject, to comment. Ms. Mosman did not submit comments. <br /> <br /> A summary of the facts is as follows. In his opinion request, Mr. Qualley wrote the following regarding a data request received by the City:</p> <p class="opinion_quote">The requested data relates to data collected by the City of Emily and the residency requirements for a member of the City Council. The data requested is a copy of the council members [sic] driver's license that was provided when the council member filed a request to run for a seat on the City Council, and the other data submitted when that person filed, such as the Affidavit of Candidacy. The City is unable to determine how that data is to be classified, and whether the City must or can disclose the data.</p> <p>The City provided the Affidavit of Candidacy and the copy of the driver's license to the Commissioner for review.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Qualley's request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data maintained by the City of Emily related to the residency requirements for a candidate for public office?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 1, states the general rule that all government data are public unless classified otherwise. <br /> <br /> Minnesota Statutes, Chapter 205, governs municipal elections. Minnesota Statutes, section 205.13, subdivision 1, requires candidates for city office to submit an affidavit of candidacy with the municipal clerk. Subdivision 1 also requires that the affidavit be, in substantially the same form as that in [Minnesota Statutes,] section 204B.06, subdivision 1.</p> <p>The City of Emily uses an Affidavit of Candidacy form found on the Minnesota Secretary of State's website. The form collects name, office sought, address, phone number, campaign address, website, and email address. The form also states, [a]ll information on this form is available to the public. Consistent with the requirements of section 204B.06, subdivision 1b(a), the form also contains a provision allowing a candidate to request that his or her residential address be maintained as private data. Ms. Mosman did not request the private classification for her residential address. Except for the provision in section 204B.06, subdivision 1b(a), nothing in Chapters 204B or 205 (or the Minnesota Election Law, generally) classifies the data in the affidavit as not public. Therefore, under the general presumption in section 13.03, subdivision 1, the data in the Affidavit of Candidacy are public.</p> <p>The City of Emily also maintains a photocopy of Ms. Mosman's driver's license, collected from her at the time she filed her Affidavit for Candidacy, apparently as proof of her residence within the City. The Commissioner is not aware of any laws classifying driver's license data submitted to a local government entity by a candidate for office as not public. The federal law and corresponding state law that require the Minnesota Department of Public Safety to treat driver's license data as not public are not applicable in this situation. (See 18 U.S.C. 2721 and Minnesota Statutes, section 171.12, subdivision 7.) Unlike a Social Security number, which is classified by state and federal law as private regardless of the manner of collection, a driver's license number is private only when a government entity receives it from the Department of Public Safety. Therefore, the photocopy is also public under the general presumption in section 13.03, subdivision 1. (Not raised here is the issue of whether Ms. Mosman, as a city council member, is an employee of the City and whether the data could be classified under Minnesota Statutes, section 13.43. See Advisory Opinion <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267446#/detail/appId/1/id/267335" title="03 011" target="_blank">03-011</a>.)</p> <p>The Commissioner would like to remind government entities that they may only collect and store data on individuals that are necessary for the administration and management of programs authorized by law. (See, Minnesota Statutes, section 13.05, subdivision 3.) Here, the City of Emily collected a signed and notarized Affidavit of Candidacy, stating the candidate's address. It seems unlikely, therefore, that the additional step of collecting the driver's license was also necessary.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Qualley raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The Affidavit of Candidacy and the photocopy of a driver's license maintained by the City of Emily related to the residency requirements for a candidate for public office are classified as public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 20, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2669572665992022-01-18T19:24:38Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267001" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-04-20T15:14:43ZA school district asked about the classification of certain data in a separation agreement between the district and a former employee. The district provided redacted copies of the agreement in response to data requests by the media, stating that the redacted portions contained data classified as private by Minnesota Statutes, section 13.43, subdivision 4. Some of the redacted data were public under Minnesota Statutes, section 13.43, subdivision 2(a), as well as the general presumption. Also, some of the data were properly classified as private personnel dataApril 20, 2012; School District 191 (Burnsville-Eagan-Savage)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On February 24, 2012, the Information Policy Analysis Division (IPAD) received a letter dated February 21, 2012, from Maggie Wallner, attorney for Independent School District 191, Burnsville-Eagan-Savage. In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD asked for additional information/clarification, which Ms. Wallner provided on March 2, 2012.</p> <p>In letters dated, March 5, 2012, the Commissioner invited Leita Walker, attorney for the <em>Star Tribune</em> and Christopher Magan, reporter for the <em>Pioneer Press</em>, as well as Tania Chance and X (a pseudonym), data subjects whose rights may be affected by this opinion, an opportunity to comment. IPAD received Ms. Walker's comments on March 13, 2012, and Mr. Magan's on March 16, 2012. The data subjects did not submit comments. <br /></p> <p>A summary of the facts follows. Ms. Wallner wrote in her opinion request:</p> <p class="opinion_quote">The School District has received data requests from the media, including the St. Paul Pioneer Press and the Minneapolis Star Tribune, regarding a Separation Agreement entered into between the School District and the School District's former Executive Director of Organizational Development, Tania Z. Chance. <br /> ... <br /> Pioneer press reporter, Christopher Magan, has requested reasons for the Separation Agreement beyond the reasons set forth in the written Agreement</p> <p class="opinion_quote">Likewise, Leita Walker, legal counsel for the Star Tribune contends that the Separation Agreement does not contain specific reasons for the Agreement and requests that the District "separately provide a list of such reasons."</p> <p>In response to the initial data requests by Mr. Magan and Ms. Walker, the District released a redacted copy of the separation agreement; they then requested unredacted copies of the agreement.</p> <p>Ms. Wallner further wrote:</p> <p class="opinion_quote">[I]t is the School District's position that it has provided the requestors the reasons for the Separation Agreement. It is the School District's position that the entire Separation Agreement is not classified as public data; rather, public data is limited to the language in the Agreement that constitutes terms.</p> <p>The District provided the Commissioner with an unredacted copy of the separation agreement to review, per Minnesota Statutes, section 13.072, subdivision 4.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data Independent School District 191, Burnsville-Eagan-Savage, redacted under Minnesota Statutes, section 13.43, subdivisions 1 and 4, in response to a request for terms of and specific reasons for a separation agreement between the District and an employee?</p> <p>2. To the extent that the redacted separation agreement does not contain specific reasons for the agreement as required by Minnesota Statutes, section 13.43, subdivision 2(a)(6), must the district provide that data to the public?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p><strong>Issue 1</strong>. <em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data Independent School District 191, Burnsville-Eagan-Savage, redacted under Minnesota Statutes, section 13.43, subdivisions 1 and 4, in response to a request for terms of and specific reasons for a separation agreement between the District and an employee?</em></p> <p>Minnesota Statutes, section 13.43, subdivision 2(a)(6) states that the following data are public:</p> <p class="opinion_quote">the terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money;</p> <p>On behalf of the District, Ms. Wallner has argued that certain data within the agreement should be classified as private, despite the language in section 13.43, subdivision 2(a)(6), because the data relate to conditions rather than terms. In her supplemental material, she states that the classification of the data at issue hinged on the difference between a term and a condition, using definitions from Black's Law Dictionary.</p> <p>However, under Minnesota Statutes, section 645.08, words and phrases are construed according to rules of grammar and according to their common and approved usage. While the distinction between a term and a condition might be pertinent in resolving an issue related to the actual performance of duties under the agreement at issue, in interpreting the provisions of Chapter 13, the Commissioner looks to the plain language of the law and its common and approved usage. <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines terms as, provisions that determine the nature and scope of an agreement.</p> <p>Ms. Wallner further argued:</p> <p class="opinion_quote">The classification of the redacted language in Section II(c)(d) of the Separation Agreement is classified as private data in the possession of another government entity. Absent a <em>specific</em> statute changing the classification of the data to public data, it retains its private classification in the possession of the School District. [Emphasis provided.]</p> <p>However, in this case, there is a specific statute that alters the classification of otherwise not public data: section 13.43, subdivision 2(a)(6). The Commissioner has previously opined that not public data could be included in the terms of a settlement agreement and that the operation of section 13.43, subdivision 2(a)(6), is such that those data elements would become public. In Advisory Opinion 97-017, the Commissioner wrote:</p> <p class="opinion_quote">[I]t seems reasonable to assume that if the Legislature intended for medical data, which are part of a settlement agreement, to remain private, it (the Legislature) would have enacted the appropriate language.</p> <p>Advisory Opinion 09-024 further refined that argument:</p> <p class="opinion_quote">The Commissioner notes that the [parties] could have agreed to include in the settlement agreement additional information related to the dispute that otherwise are not public. As terms of the agreement, those data would then be public.</p> <p>Therefore, all terms of an agreement, in their entirety, regardless of the classification elsewhere, are public under section 13.43, subdivision 2(a)(6).</p> <p>It does not follow that every data element within the four corners of a separation agreement is public data, however. Ms. Walker, from the Star Tribune, quotes language in Advisory Opinion 94-051 to support her argument that all data within a separation agreement are public:</p> <p class="opinion_quote">The terms of settlement agreements resolving disputes arising out of the employment relationship are always public data for purposes of Chapter 13 Wherever a settlement agreement appears in these exhibits, <em>the complete contents of that agreement are public data.</em> (Emphasis provided.)</p> <p>While Ms. Walker emphasized certain language, the operative language in that sentence is, "<em>in these exhibits</em>," which pointedly refers to the specific exhibits at issue in that Opinion, rather than settlement agreements generally. More important is the first quoted section, which is consistent with the interpretation in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267364" title="97-017" target="_blank">97-017</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267283" title="09-024" target="_blank">09-024</a>, that the entire agreement is not necessarily public, but the <em>terms</em> of these types of agreements are always public.</p> <p>Because terms are always public data, it follows then, that in order for data to be classifiable as not public, the data cannot be terms of the agreement. Indeed, Chapter 13 contemplates this possibility in Minnesota Statutes, section 13.08, subdivision 6, which provides immunity for the release of not public data in a settlement agreement that may become public by operation of a later-enacted statute. As Ms. Wallner argues, "[t]he immunity provided in the statute would not be necessary if all data contained in a settlement agreement is classified as public upon execution."</p> <p>It is the opinion of the Commissioner that the redacted portions of Section II of the separation agreement describe actions to be taken in order for the parties to fulfill their obligations to one another, thus defining the nature and scope of the agreement. Therefore, the redacted portions constitute "terms" within the meaning of section 13.43, subdivision 2(a)(6) and are public.</p> <p>The Commissioner further opines that the reference letters marked Attachment 1 and 2 of the separation agreement, which the District wholly redacted, are not terms of the agreement. Section VI of the separation agreement states that the District will provide Ms. Chance with two letters of recommendation upon the satisfaction of other conditions within the agreement. That is a "term" of the agreement, setting forth the conditions upon which the letters will be signed and distributed. The letters themselves, however, are non-term data about Ms. Chance as a former employee of the District and possibly about other individuals associated with the District. Therefore, the data in the letters are not made public as terms and are classified according to other provisions in section 13.43.</p> <p>However, Chapter 13 classifies data elements, not entire documents. After reviewing the contents of the letters, it is the Commissioner's opinion that portions of the letters contain data made public by other provisions of section 13.43, subdivision 2, and should not have been redacted. For example, employee names, terms and conditions of employment, job title, job description, and date of first and last employment are public data. Other data in the letters of recommendation were properly redacted as data in the nature of a performance evaluation, which are private under subdivision 4.</p> As to whether any of the data the District redacted constitute "specific reasons" for the agreement, the Commissioner addressed that issue in Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267283" title="09-024" target="_blank">09-024</a>. In that Opinion, the Commissioner also looked to the common and approved usage of the statutory language and concluded that the agreement at issue there contained the specific reasons for the agreement: <p class="opinion_quote">Section 13.43 does not define "specific reason." <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines "specific" as "free from ambiguity: accurate" and defines "reason" as "a statement offered in explanation or justification."</p> <p>In that Opinion, the District argued, and the Commissioner agreed, that the specific reasons for the agreement were provided throughout the 17- page agreement and that the phrase "specific reasons" meant, "explanation sufficient to show that the payment was not a gift under guise of a compromise."</p> <p>In applying those arguments to Ms. Chance's agreement, the Commissioner opines that to the extent that the redacted terms in Section II also provide justification or explanation for the agreement, they constitute "specific reasons for the agreement," and as such, they are public data.</p> <p>The data in the letters, however, do not provide specific explanation or justification for the agreement, and therefore, because they do not constitute specific reasons, the data may not be classified as public under section 13.43, subdivision 2(a)(6) (though some of the data may be classified as public pursuant to another provision of section 13.43, as discussed above).</p> <p><em><strong>Issue 2</strong>.</em><em>To the extent that the redacted separation agreement does not contain specific reasons for the agreement as required by Minnesota Statutes, section 13.43, subdivision 2(a)(6), must the district provide that data to the public?</em></p> <p>Chapter 13 contains few provisions requiring the creation of data. Section 13.43, subdivision 2(a)(6), is one such provision; entities must include the specific reasons for the agreement in any settlement agreement that involves a payment of $10,000 or more. However, government entities are not required to create data to respond to data requests. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267600" title="00-048" target="_blank">00-048</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267945" title="01-011" target="_blank">01-011</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267507" title="01-012" target="_blank">01-012</a>.)</p> <p>When drafting these agreements, the District must also be mindful of its responsibilities under the Official Records Act, Minnesota Statutes, section 15.17, which requires government entities to create and maintain records sufficient to document their official activities. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267773" title="99-005" target="_blank">99-005</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267846" title="08-026" target="_blank">08-026</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/266763" title="10-017" target="_blank">10-017</a>.) The Commissioner understands that government entities must balance a variety of interests when negotiating and drafting settlement agreements. He encourages them to find ways to achieve that balance while meeting their obligations both to the public and to data subjects.</p> <p>Finally, the Commissioner is aware that the current Legislature is working to provide clarity to section 13.43, subdivision 2(a)(6). <br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Wallner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Pursuant to Minnesota Statutes, Chapter 13, data redacted in Section II of the separation agreement between Independent School District 191, Burnsville-Eagan-Savage and Tania Chance are terms and/or data documenting the specific reasons for the agreement, and are therefore public. Data redacted from the letters of recommendation are neither terms nor data that document the specific reasons for the agreement; they are therefore classified as public or private, pursuant to Minnesota Statutes, section 13.43, subdivisions 2 and 4. It is also possible that some of the data in the letters are not personnel data, or even data on individuals, and are therefore presumptively public.</p> <div style="margin-left: 2em"> <p>2. Pursuant to Chapter 13, the District does not need to create data to respond to a data request. When drafting these types of agreements, the District must be mindful of its responsibilities under the Official Records Act, Minnesota Statutes, section 15.17.</p> </div> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 20, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2670012665572022-01-18T19:24:38Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267944" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-04-03T15:14:43ZAn individual requested access to the dates applicants for public employment applied and took qualifying tests. The dates alone, i.e., not associated with any individual, are not data on individuals, and therefore cannot be private personnel data. The entity stated that in response, it had to prepare “summary data” per Minnesota Statutes, section 13.02, subdivision 19. However, summary data must be derived from what is otherwise completely private or confidential data. Accordingly, summary data cannot be derived from applicant data, which are both public and private. To comply with the data request, the entity simply needed to redact all data from the applications and tests except the dates, rather than prepare a summary of the data.April 3, 2012; School District 709 (Duluth)36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><h2> Facts and Procedural History: </h2><p> On February 27, 2012, the Information Policy Analysis Division (IPAD) received a letter dated February 23, 2012, from Richard Paulson. In his letter, Mr. Paulson asked the Commissioner to issue an advisory opinion about his right to gain access to certain data Independent School District 709, Duluth, maintains. <br /><br /> IPAD, on behalf of the Commissioner, wrote to William Gronseth, District Superintendent, in response to Mr. Paulson's request. The purposes of this letter, dated March 2, 2012, were to inform him of Mr. Paulson's request and to ask him to provide information or support for the District's position. On March 16, 2012, IPAD received a response, dated same, from Kevin J. Rupp and Trevor S. Helmers, attorneys for the District. <br /></p><p> A summary of the facts as Mr. Paulson provided them follows. He wrote: </p><p class="opinion_quote"> On August 25, 2011, I emailed William Hanson at Independent School District 709 and asked for access to certain data. I inspected data on October 24, 2011, and I believe the District did not provide me with some of the data I requested. I am enclosing copies of my data request, and the District's responses. </p><p class="opinion_quote"> My request asked to inspect all documents, correspondence, confirmations, and contracts between PEIP and the Duluth School District since the District contacted PEIP for health insurance coverage effective 1/1/10. </p><p class="opinion_quote"> The District responded by providing a mostly blank copy of the PEIP Group Application form, which is not a contract... No other documents between PEIP and the District were available for my inspection. I told Mr. Hanson the Group Application was not what I wanted, and that I wanted to see the confirmation PEIP gave the District to start this coverage and any other documents and correspondence. Mr. Hanson said he would provide the data, but hasn't done so as of this date. </p><p class="opinion_quote"> I also asked to inspect all notes, memos, and emails between the District, Union, and School Board regarding negotiations and costs of health insurance coverage with PEIP. In Mr. Hanson [sic] response October 18, 2011, Mr. Hanson said information is available but I have not been provided with any. </p><p /><hr /><h2> Issues: </h2><p> Based on Mr. Paulson's opinion request, the Commissioner agreed to address the following issues: </p><dd><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox"><p> 1. Did Independent School District 709, Duluth, comply with Minnesota Statutes, Chapter 13, in its response to an August 25, 2011, request to inspect all documents, correspondence, confirmations, and contracts between the Minnesota Public Employees Insurance Program (PEIP) and the District since the District contacted PEIP for health insurance coverage effective 1/1/10? </p><p> 2. Did the District comply with Chapter 13 in its response to an August 25, 2011, request to inspect all notes, memos, and emails between the District, Union, and School Board regarding negotiations and costs of health insurance coverage with PEIP? </p></td></tr></tbody></table><hr /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) </p><p><strong>Issue 1.</strong><em> Did Independent School District 709, Duluth, comply with Minnesota Statutes, Chapter 13, in its response to an August 25, 2011, request to inspect all documents, correspondence, confirmations, and contracts between the Minnesota Public Employees Insurance Program (PEIP) and the District since the District contacted PEIP for health insurance coverage effective 1/1/10? </em></p><p> According to Mr. Rupp and Mr. Helmers, Mr. Paulson's August 25, 2011, data request, followed a long line of requests and communications between Mr. Paulson and the District... regarding these issues. They wrote that Mr. Paulson's request was quite broad, and as written, sought documents which contained private personnel data, as well as possibly other not public data. </p><p> Mr. Hanson contacted Mr. Paulson by email on September 13, 2011, and also by telephone, in order to discuss the request and to attempt to make it more specific. Mr. Hanson wrote Mr. Paulson on October 18, 2011: [y]ou previously asked for 'contract' information with PEIP and it was previously provided. Additional correspondence deals with personal data that you indicated that you did not want. Other documents are available. <br /><br /> Mr. Rupp and Mr. Helmers wrote to the Commissioner: <br /><br /><span class="opinion_quote">Mr. Paulson appears to believe that the District withheld documents on October 24, 2011... However, all documents which were referenced by Mr. Hanson in his October 18, 2011, email were provided to Mr. Paulson for his review.</span></p><p class="opinion_quote"> The District has no confirmation or contract with PEIP regarding the health insurance coverage for District employees. The only documents which the District had with PEIP were the Group Application, dated January 1, 2010, and the Summary of Benefits Documents. Both of these documents were provided to Mr. Paulson on May 16, 2011. The District is not aware of whether the union signed any contract or documents with PEIP, and does not have access to those documents... On May 26, 2011, Mr. Hanson again notified Mr. Paulson that there was no contract between the District and PEIP. </p><p><span class="opinion_quote">Mr. Hanson informed Mr. Paulson of the fact that there was no contract again on October 24, 2011. The District is not required to create new data to respond to data requests...</span></p><p> Mr. Paulson wrote that when he inspected the data the District made available on October 24, 2011, I told Mr. Hanson the Group Application was not what I wanted, and that I wanted to see the confirmation PEIP gave the District to start this coverage and any other documents and correspondence. Mr. Hanson said he would provide the data, but hasn't done so as of this date. </p><p> According to Mr. Rupp and Mr. Helmers, the District provided Mr. Paulson with access to all data it maintains that are responsive when he inspected data on October 24, 2011. The Commissioner cannot resolve that factual dispute. </p><p> Mr. Rupp and Mr. Helmers are correct; the District is not required to create data in response to a request. However, given the nature of the data Mr. Paulson is seeking, the Commissioner encourages the District to review its obligations under Minnesota Statutes, section 15.17, to make and preserve all records necessary to a full and accurate knowledge of [its] official activities. <br /></p><p><em><strong>Issue 2.</strong> Did the District comply with Chapter 13 in its response to an August 25, 2011, request to inspect all notes, memos, and emails between the District, Union, and School Board regarding negotiations and costs of health insurance coverage with PEIP? </em></p><p> In his October 18, 2011 email to Mr. Paulson, Mr. Hanson stated, [i]nformation is available. Mr. Rupp and Mr. Helmers wrote to the Commissioner: </p><p class="opinion_quote"> The District also provided all documents related to the negotiations and costs of health insurance coverage with PEIP on October 24, 2011.... Again, the District has no obligation to create new data, and simply provided the documents that were in its possession which were responsive to the request. </p><p> Mr. Hanson wrote in his October 18, 2011, email that information is available, but Mr. Paulson stated that he has not been provided with any. Again, the Commissioner cannot resolve the factual dispute between the parties, but suggests the District review its obligations under Minnesota Statutes, section 15.17. </p><p /><hr /><h2> Opinion: </h2><p> Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Kramer raised is as follows: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox"><p> 1. The Commissioner cannot determine whether Independent School District 709, Duluth, complied with Minnesota Statutes, Chapter 13, in its response to an August 25, 2011, request to inspect "all documents, correspondence, confirmations, and contracts between the Minnesota Public Employees Insurance Program (PEIP) and the District since the District contacted PEIP for health insurance coverage effective 1/1/10." </p><ol><p> 2. The Commissioner cannot determine whether the District complied with Chapter 13 in its response to an August 25, 2011, request to inspect "all notes, memos, and emails between the District, Union, and School Board regarding negotiations and costs of health insurance coverage with PEIP." </p></ol></td></tr></tbody></table><p /><p> Signed: </p><p> Spencer Cronk <br /> Commissioner </p><p class="date"> Dated: April 3, 2012 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2679442022-01-18T19:24:37Z266258266283266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266443" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-03-08T16:14:43ZDid the City of Kasson Library Board comply with Minnesota Statutes, section 13D.04, regarding notice of a special meeting held Friday, October 21, 2011? Did the City of Kasson Library Board comply with Minnesota Statutes, section 13D.05, regarding electronic recordings of certain closed meetings?March 8, 2012; City of Kasson Library Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On January 23, 2012, the Information Policy Analysis Division (IPAD) received a letter dated January 22, 2012, from Mary Kramer. In her letter, Ms. Kramer asked the Commissioner to issue an advisory opinion about the City of Kasson Library Board's conduct under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML).</p> <p>IPAD, on behalf of the Commissioner, wrote to Lori Hopkins, Chair of the Board, in response to Ms. Kramer's request. The purposes of this letter, dated January 31, 2012, were to inform her of Ms. Kramer's request and to ask her to provide information or support for the Board's position. On February 13, 2012, IPAD received a response, dated February 10, 2012, from Joseph M. Guzinski, attorney for the Board. A summary of the facts follows.</p> <p>In her opinion request, Ms. Kramer wrote:</p> <p class="opinion_quote">I was terminated Friday, October 21 at 5pm during a library board special meeting which was never posted. The meeting was not scheduled and I was not informed about it until Wednesday, October 19During the Oct. 21 meeting, I questioned whether the board was in compliance and whether the meeting was in violation of Minnesota's Open Meeting Law. The Library Chair, Lori Hopkins described the meeting as a special meeting; The next day[Library Director Bonnie Adams] said the meeting did not have to be posted because it was an emergency meeting; I would like it clarified because the attendees still wonder whether the library was in compliance because of Ms. Hopkins' remarks.</p> <p>Under the Data Practices Act, Minnesota Statutes, Chapter 13, Ms. Kramer also requested copies of the audio recordings of four closed Board meetings and was informed that the meetings had not been recorded.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Kramer's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Did the City of Kasson Library Board comply with Minnesota Statutes, section 13D.04, regarding notice of a special meeting held Friday, October 21, 2011?</p> <p>2. Did the City of Kasson Library Board comply with Minnesota Statutes, section 13D.05, regarding electronic recordings of certain closed meetings?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no dispute between the parties that the Board is subject to the Open Meeting law and must comply as provided in Minnesota Statutes, section 13D.01, subdivision 1(c)(3).</p> <p><em><strong>Issue 1.</strong> Did the City of Kasson Library Board comply with Minnesota Statutes, section 13D.04, regarding notice of a special meeting held Friday, October 21, 2011?</em></p> <p>There are three types of meetings under the Open Meeting Law: regular, special, and emergency. Public bodies are required to keep a schedule of regular meetings on file at their primary offices. Further notice is not required. (See Minnesota Statutes, section 13D.04, subdivision 1.)</p> <p>For a special meeting, Minnesota Statutes, section 13D.04, subdivision 2, requires a public body to post written notice of the date, time, place and purpose of the meeting on the principal bulletin board or the door of the usual meeting room of the public body at least three days before the meeting.</p> <p>Pursuant to Minnesota Statutes, section 13D.04, subdivision 3(d), an emergency meeting is defined as, a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body. The Commissioner has previously opined that, emergency meetings should be used rarely and for circumstances where public safety is jeopardized. Examples of emergency situations would include holding a meeting to respond to a natural disaster or to a health epidemic caused by an event such as an accident or terrorist activity. (See, <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267124" target="_blank">Advisory Opinion 06-027</a>.)</p> <p>In her opinion request, Ms. Kramer stated that there was ongoing confusion as to whether the meeting of October 21, 2011, was held in conformity with the Open Meeting Law. Neither Ms. Kramer, nor the Board asserts that the October 21, 2011, meeting was a regular meeting. In the notice provided to Ms. Kramer on October 19, 2011, the meeting was described as, a disciplinary hearing. Given the nature of the meeting, the Commissioner does not think that it rises to the level of an emergency meeting. Therefore, it was a special meeting and the Board should have posted a written notice, as required by Minnesota Statutes, section 13D.04, subdivision 2(a), on or before October 18, 2011, i.e., at least three days prior to the meeting.</p> <p>In his comments to the Commissioner, Mr. Guzinski wrote:</p> <p class="opinion_quote">The Kasson Library Board did not provide proper notice of the special meeting of the Kasson Library Board which was held on Friday, October 21, 2011. The Library Board was under the mistaken assumption that the special meeting held on Friday, October 21, 2011, was an emergency meetingThe City Administrator and I are both satisfied that the meeting of October 21, 2011, was not, in fact, an emergency meeting. The Library Board has been informed by the Kasson City Administrator of the definition of an emergency meeting so that this failure of notice pursuant to Minnesota Statutes 13D.04, Subd. 2(a), will not occur again in the future.</p> <p>The Commissioner is encouraged by the Board's comments. The Board acknowledges that it did not provide adequate notice of the October 21, 2011, special meeting and has taken steps to ensure that it will not happen again.</p> <p><em><strong>Issue 2</strong>. Did the City of Kasson Library Board comply with Minnesota Statutes, section 13D.05, regarding electronic recordings of certain closed meetings?</em></p> <p>All closed meetings, except those closed as permitted by the attorney-client privilege, must be recorded at the expense of the public body, per Minnesota Statutes, section 13D.05, subdivision 1(d). Public bodies may close a meeting to evaluate the performance of an employee who is subject to their authority. (See Minnesota Statutes, section 13D.05, subdivision 3(a).)</p> <p>Ms. Kramer submitted a data request for the recordings of four meetings closed to evaluate her job performance. In response to Ms. Kramer's data request, the Kasson City Administrator, Randy Lenth, replied that the meetings had not been taped. If the Board had taped the meetings, Ms. Kramer would have been entitled to get access to the recordings that contained data about her under Minnesota Statutes, section 13.43, subdivisions 2 and 4.</p> <p>Mr. Guzinski wrote to the Commissioner:</p> <p class="opinion_quote">Unfortunately, the Kasson Library Board failed to electronically record the four closed meetings mentioned above. The Kasson City Administrator has informed the Kasson Library Board of the requirements of Minn. Stat. 13D.05, Subd. 1(d).</p> <p>Again, the Board has acknowledged that it was not in compliance with the Open Meeting Law when it failed to record the four closed meetings on July 14, 2011, August 31, 2010, May 12, 2009, and December 8, 2009. Having now been informed of the recording requirements by the City Administrator, the Board can avoid similar situations in the future.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Kramer raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. The City of Kasson Library Board did not comply with Minnesota Statutes, section 13D.04, regarding notice of a special meeting held Friday, October 21, 2011.</p> <p>2. The City of Kasson Library Board did not comply with Minnesota Statutes, section 13D.05, regarding electronic recordings of certain closed meetings.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 8, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2664432662902025-07-10T16:53:11Z266258266293266324266511266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267839" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-02-01T02:14:43ZDid the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in its response to a November 15, 2011, request for access to the following data: dates of applications and dates of testing for all applicants for a certain City position?January 31, 2012; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On December 15, 2011, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Cathleen Rico. In her letter, Ms. Rico asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the City of Minneapolis.</p> <p>IPAD, on behalf of the Commissioner, wrote to Craig Steiner, Responsible Authority and Data Practices Compliance Official for the City, in response to Ms. Rico's request. The purposes of this letter, dated December 20, 2011, were to inform him of Ms. Rico's request and to ask him to provide information or support for the City's position. On January 5, 2011, IPAD received a response, dated same, from Mr. Steiner.</p> <p>A summary of the facts follows. In an email dated November 15, 2011, Ms Rico asked the City for access to applicant data for the Assessor II position, job posting #20817. She wrote:</p> <p class="opinion_quote">I would like the application dates of all applicants. I would also like to know what dates the selected applicants took the test. I am not requesting names or any private personnel information associated with the applicants.</p> <p>In its November 17, 2011, response, the City wrote to Ms. Rico:</p> <p class="opinion_quote">[t]he data you requested is not public. However, the City will prepare summary data responsive to your request subject to the City's Data Charges Policy. The cost to you for the City to prepare this data is estimated to be $17.00. Please inform me whether you still want the city to prepare the data.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Rico's request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in its response to a November 15, 2011, request for access to the following data: dates of applications and dates of testing for all applicants for a certain City position?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Data on individuals who are employees of or who apply for employment with a government entity are classified pursuant to Minnesota Statutes, section 13.43. Under section 13.43, subdivision 3, the following data about all applicants are public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. An applicant's name is not public until s/he becomes a finalist. The treatment of personnel data runs contrary to the general presumption that government data are public unless otherwise classified by state or federal law (see section 13.03, subdivision 1.) Subdivision 3 of section 13.43 sets forth the types of applicant data that are public and subdivision 4 classifies most other personnel data as private.</p> <p>In his response to the Commissioner, Mr. Steiner wrote:</p> <p class="opinion_quote">Personnel data is private unless specifically codified as public in Minn. Stat. sec. 13.43. Neither dates of applications nor dates of testing appears in this list. Minn. Stat. sec. 645.16 states:</p> <p class="opinionquoteinquote">The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.</p> <p class="opinionquoteinquote">When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.</p> <p class="opinion_quote">Minn. Stat. sec. 13.43 Subd. 3 is clear and free from ambiguity. Minn. Stat. sec. 645.19 states: [e]xceptions expressed in a law shall be construed to exclude all others.' The legislative exceptions to private personnel data do not include dates of application or dates of testing. As required, the City followed the plain language of section 13.43, Subd. 3, and Minnesota statutes regarding statutory construction, in concluding that dates of applications and dates of testing are private data.</p> <p class="opinion_quote">Nevertheless, the City prepared summary data responsive to Ms. Rico's request and offered it to her</p> <p>As noted above, data on applicants are classified as either public or private data on individuals. Ms. Rico asked for access to dates of application and dates when applicants took a test; she specifically stated that she was not seeking access to names or any private personnel information associated with the applicants.</p> <p>Pursuant to Minnesota Statutes, section 13.02, subdivision 5, data on individuals is defined as all government data in which any individual is or can be identified as the subject of that data. Data not on individuals are data the subjects of which are not individuals. (See section 13.02, subdivision 4.)</p> <p>In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267519" target="_blank">Advisory Opinion 04-023</a>:</p> <p class="opinion_quote">Section 244.052, subdivision 3(c) does not classify data that are not about an individual sex offender.</p> <p class="opinion_quote">Here, the Star Tribune asked the Department to redact the data about Mr. Rodriguez from the end-of-confinement review materials, and provide it with access to the remaining public data, e.g., dates of meetings, participants in meetings, length of meetings, etc. The Star Tribune asserts, and the Commissioner agrees, that any such data that are not about the individual offender are not classified under section 244.052, subdivision 3(c). The Commissioner is not aware of any provision that classifies any end-of-confinement review data that are not on individuals as not public.</p> <p>Here, the situation is similar. Ms. Rico asked for dates of application and testing, not associated with an individual. As such, the dates alone are not data on individuals, and therefore cannot be private data. In order to comply with Ms. Rico's request, the City simply needed to redact all data from the applications and tests except the dates.</p> <p>In addition, the Commissioner respectfully disagrees with Mr. Steiner that the City properly responded to Ms. Rico by preparing summary data. Minnesota Statutes, section 13.02, subdivision 19, defines summary data as statistical records and reports derived from data on individuals but in which individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508" title="00-011" target="_blank">Advisory Opinion 00-011</a>, the Commissioner opined:</p> <p class="opinion_quote">The definition of summary data is key to understanding the difference between preparation of summary data and separation of public from not public data. Summary data must be derived from what is otherwise completely private or confidential data.</p> <p>Accordingly, summary data cannot be derived from applicant data, which are public and private.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Rico raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Minneapolis did not comply with Minnesota Statutes, Chapter 13, by denying a November 15, 2011, request for access to the following data: dates of applications and dates of testing for all applicants for a certain City position.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 31, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2678392665122665132663342662782025-11-10T22:25:08Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267369" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-01-31T16:14:43ZPursuant to Minnesota Statutes, section 13.643, what is the classification of data in “animal test charts” that the Minnesota Board of Animal Health (BAH) maintains? May the Board release data in response to a request such as the following: “the type and identification numbers of animals located on John Doe’s premises, ID # 11111”?January 31, 2012; Minnesota Board of Animal Health (BAH)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On December 12, 2011, the Information Policy Analysis Division (IPAD) received a letter dated December 5, 2011, from W.L. Hartmann, Executive Director of the Minnesota Board of Animal Health (BAH). In his letter, Dr. Hartmann asked the Commissioner of Administration to issue an advisory opinion regarding the classification of certain data BAH maintains. IPAD asked for additional information/clarification, which Beth Thompson of BAH provided on December 12, 2011, and January 23, 2012.</p> <p>A summary of the facts as Dr. Hartmann and Dr. Thompson provided them follows. In his opinion request, Dr. Hartmann wrote:</p> <p class="opinion_quote">1. The Board of Animal Health is a repository for animal test charts. Test charts generally contain the owner's name, address, and the premises identification number, in addition to individual animal or herd identification and testing results.</p> <p class="opinion_quote">2. If the Board receives a request for information on a specific named premises, can additional information be supplied? For example, if a request is made for the type of animals and identification numbers of the animals located on John Doe's premises, premises ID #11111', can the information be supplied?</p> <p>Dr. Hartmann submitted a sample form, entitled Cooperative State-Federal Tuberculosis Eradication Program, with his request. According to Dr. Thompson, for purposes of this opinion, there is no issue of federal law classifying the data.</p> <hr /> <h2>Issue:</h2> <p>Based on Dr. Hartmann's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Pursuant to Minnesota Statutes, section 13.643, what is the classification of data in animal test charts that the Minnesota Board of Animal Health (BAH) maintains?</p> <p>2. May the Board release data in response to a request such as the following: the type and identification numbers of animals located on John Doe's premises, ID # 11111?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.643, subdivision 6, states:</p> <p class="opinion_quote">(a) The following data collected and maintained by the Board of Animal Health related to registration and identification of premises and animals under chapter 35, are classified as private or nonpublic:</p> <p class="opinionquoteinquote">(1) the names and addresses;</p> <p class="opinionquoteinquote">(2) the location of the premises where animals are kept; and</p> <p class="opinionquoteinquote">(3) the identification number of the premises or the animal.</p> <p><em><strong>Issue 1.</strong> Pursuant to Minnesota Statutes, section 13.643, what is the classification of data in animal test charts that the Minnesota Board of Animal Health (BAH) maintains?</em></p> <p>The Cooperative State-Federal Tuberculosis Eradication Program form collects herd owner's name (including signature) and complete address, and animal identification number. Those data are private/nonpublic under Minnesota Statutes, section 13.643. Dr. Thompson wrote that the Board considers that the following data collected on the form constitute all the location of premises where animals are kept data, which are also private/nonpublic: county, township or district, sec[tion], farm no.</p> <p>The form also contains data in addition to those specifically classified under Minnesota Statutes, section 13.643. For example, reason for test, previous test date, kind of herd, method of test, as well as for practitioner's (veterinarian's) name, telephone number and signature, date/hour of injection and observation, number of and kind of eligible animals in herd, certification for payment, etcetera. Pursuant to Minnesota Statutes, section 13.03, subdivision 1, those data are presumptively public.</p> <p><em><strong>Issue 2.</strong> May the Board release data in response to a request such as the following: the type and identification numbers of animals located on John Doe's premises, ID #?</em></p> <p>In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-267979" target="_blank">Advisory Opinion 11-007</a>, the Commissioner opined:</p> <p class="opinion_quote">Although the registration data the requestor seeks - registration number for a boat, snowmobile or OHV; the type, size and length of the recreational vehicle; a serial number; notice of liens; etcetera - are public when not linked to an individual, once they are connected to an individual, pursuant to Minnesota Statutes, section 84.0874, the registration data cannot be released.</p> <p class="opinion_quote">In other words, the effect of Minnesota Statutes, section 84.0874, is that DNR cannot release registration data that are linked to identifying information about the individual registrant, unless the registrant has given his/her informed consent or there is statutory authority permitting the disclosure.</p> <p>The analysis here is similar. Once the public data on the form are linked to the private/nonpublic data (e.g., name, address, and location and premises identification number), then generally speaking they cannot be released, absent the owner's consent or statutory authority, pursuant to Minnesota Statutes, section 13.643. (However, under section 13.643, subdivision 6 (b), the Board may release data to any person, agency, or to the public if the board determines that the access will aid in the law enforcement process or the protection of public or animal health or safety.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Dr. Hartmann raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>1. Pursuant to Minnesota Statutes, section 13.643, the following data in animal test charts that the Minnesota Board of Animal Health (BAH) maintains are private/nonpublic: the owner(s) name(s), signature(s) and address(es); the location of the premises where animals are kept (including county, township or district, section, farm number); and the identification number of the premises or the animal.</p> <p>2. The Board may not release data in response to a request such as the following: the type and identification numbers of animals located on John Doe's premises, ID # 11111.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 31, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2673692666172663932025-11-10T22:15:19Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267707" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2012-01-12T16:14:43Z An individual asked if a school district violated the Open Meeting Law (OML) when it conducted an open meeting (a 15-minute presentation by the superintendent with a quorum of school board members present) then broke in to small discussion groups where the board members were in separate locations and could not hear and/or see one another. The Commissioner concluded that a quorum of the full body did not participate in any of those discussions and therefore the board did not violate the OML. The Commissioner also acknowledged the requester’s concern that the Board violated a purpose of the OML as articulated by the Minnesota Supreme Court, i.e., “to afford the public an opportunity to present its views to the [public body].” Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002). However, the OML does not provide the public with the right to speak at a public meeting. In addition, the requester asserted that the board violated the OML because it did not create meeting minutes. The Commissioner noted that the OML does not require a public body to do so. January 12, 2012; School District 47 (Sauk Rapids-Rice)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On November 28, 2011, the Information Policy Analysis Division (IPAD) received a letter dated November 27, 2011, from A. Jeanene Kern. In her letter, Ms. Kern asked the Commissioner to issue an advisory opinion about Independent School District 47, Sauk-Rapids-Rice school board's conduct under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML).</p> <p>IPAD, on behalf of the Commissioner, wrote to Lisa Braun, Chair of the Board, in response to Ms. Kern's request. The purposes of this letter, dated December 5, 2011, were to inform her of Ms. Kern's request and to ask her to provide information or support for the Board's position. On December 28, 2011, IPAD received a response, dated December 23, 2011, from Michael J. Waldspurger and Scott E. Schraut, attorneys for the District.</p> <p>A summary of the facts follows. According to Mr. Waldspurger and Mr. Schraut:</p> <p class="opinion_quote">On October 18, 2011, the District's Superintendent, Dr. Daniel Bittman, gave an oral presentation in the auditorium at Sauk Rapids-Rice Middle School. Dr. Bittman did not answer questions during his presentation, and neither he nor the Board provided an opportunity for public comment during the presentation.</p> <p class="opinion_quote">Before Dr. Bittman spoke, the Board did not call a meeting to order. During Dr. Bittman's presentation, the Board did not discuss, decide, or transact any business. After Dr. Bittman finished speaking, the Board did not make a motion to adjourn the meeting.</p> <p>According to Mr. Waldspurger and Mr. Schraut, at the conclusion of Dr. Bittman's presentation, the five Board members sat at four tables in different locations in the school, and could not hear what was said at the other tables.</p> <p>In her opinion request, Ms. Kern wrote:</p> <p class="opinion_quote"><em>[The District] violated the [OML] by managing public input, taken in separate locations; at four separate tables in two rooms, during the public meeting. The meeting had not been appropriately adjourned, but discussion(s) continued as directed. The interested public and the quorum of board members were unable to observe all conversations and input between the public, school staff, and board members. The manner in which the public input and comments were structured at the informational meeting was not adequate to insure that interested citizens and board members had the opportunity to observe, to become fully informed or to assure that potential improper influences could be detected-public input and exchanges happened simultaneously during private conversations and there are no minutes creating the necessary public record. The method exercised by the district in managing' public input is a violation of the purpose and spirit of the Minnesota Open Meeting Law.</em> [Emphasis omitted.]</p> <p>Ms. Kern further asserted:</p> <p class="opinion_quote"><em>The manner in which the school board allowed public input during the informational meeting(s) did not provide members of the public, or the quorum of school board members present, to observe' all discussions/input and responses. Members of the public and the school board were unable to 'become fully informed' and/or 'detect improper influences'. The special meeting was not appropriately conducted or closed. A record of the meeting minutes was not created.</em></p> <p>Ms. Kern also stated that "[e]ssentially the meeting was opened as an open meeting but then shifted to separate closed meetings."</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Kern's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did School District 47, Sauk Rapids-Rice, comply with Minnesota Statutes, Chapter 13D, when it broke up into discussion groups during a public meeting?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no dispute that a school board is a public body subject to Minnesota Statutes, Chapter 13D; the parties agree that the meeting was properly noticed per Minnesota Statutes, section 13D. 04, subdivision 2. Pursuant to Minnesota Statutes, section 123B.09, subdivision 6, a majority of the voting members of a school board constitutes a quorum.</p> <p>Minnesota Statutes, section 13D.01, subdivision 1, states: "a]ll meetings ust be open to the public." The Legislature did not define "meeting" in the OML; however, the Minnesota Supreme Court described the "quorum rule:"</p> <p class="opinion_quote"><em>'Meetings' subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</em> Moberg v. Independent School District No. 281<em>, 336 N.W.2d 510, 518 (Minn. 1983).</em></p> <p>In their comments to the Commissioner, Mr. Waldspurger and Mr. Schraut wrote that because a quorum of the Board "attended at least part of Dr. Bittman's presentation in order to receive information on an issue relating to official business of the District, a "meeting" occurred during the brief period of time that the five Board members attended Dr. Bittman's presentation."</p> <p>They wrote:</p> <p class="opinion_quote"><em>Ms. Kern incorrectly asserts that the Board closed the public meeting when Dr. Bittman finished his presentation. More specifically, Ms. Kern incorrectly asserts that a closed meeting occurred when three of the Board members sat at two different tables in the auditorium and the other two Board members sat at different tables in the hallway outside the auditorium. Contrary to Ms. Kern's allegation, the meeting was never closed to the public. To the extent that a meeting' occurred on October 18, 2011, the entire meeting was open to the public.</em></p> <p class="opinion_quote"><em>The "meeting" on October 18, 2011 ended as soon as a quorum ceased to exist. Dr. Bittman's presentation is the only time that a quorum of the Board was gathered or present in one location on October 18, 2011.</em></p> <p class="opinion_quote"><em>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267612" title="10-011" target="_blank">Advisory Opinion 10-011</a>, the Commissioner addressed whether a violation of the OML occurred when two members of a seven-member board left the meeting room during a recess to have a discussion with the chief administrator of the entity about the possibility of closing the meeting. Despite the fact that four members of the board were only a few feet away in the regular meeting room the Commissioner opined that there was likely not a violation of the OML because the gathering between the two board members that took place in the adjoining room did not constitute a quorum of the full body." Applying the same reasoning to the instant case, a quorum did not exist when three members of the Board were in the auditorium and two members of the Board were in the adjoining hallway.</em></p> <p class="opinion_quote">[Citations omitted.]</p> <p>The issues raised here are analogous to 10-011. Although five Board members participated in discussions in the building, they were separate discussions at different locations out of hearing of one another; a quorum of the full body did not participate in any of those discussions.</p> <p>Mr. Waldspurger and Mr. Schraut further wrote:</p> <p class="opinion_quote"><em>Ms. Kern also alleges that the board solicited input, responded, and engaged in private discussions with the public and each other on October 18, 2011. This allegation is simply untrue. A school board does not act through its individual members. It acts as a governing body pursuant to a majority vote of a quorum of its voting members. Because a quorum ceased to exist after Dr. Bittman finished his presentation, Ms. Kern is incorrect in stating or implying that the Board took any action after Dr. Bittman's presentation concluded on October 18, 2011.</em></p> <p class="opinion_quote"><em>Although unclear, Ms. Kern also appears to be alleging that the meeting on October 18, 2011 never ended because the Board did not make a motion to adjourn. Although it may be good practice and a wise procedure for a school board to formally move to adjourn a meeting that it called to order, the OML does not require a school board to take such action.</em></p> <p class="opinion_quote">[Citations omitted.]</p> <p>Again, the Commissioner concurs. While it might have been clearer to those in attendance that the remainder of the session was not a public meeting subject to the OML if the District had formally adjourned the meeting, the OML does not require it to do so.</p> <p>Ms. Kern also stated that the Board violated the OML because a "record of the meeting minutes was not created." However, the OML does not require a public body to create meeting minutes. (The Commissioner notes that pursuant to Minnesota Statutes, section 123B.09, subdivision 10, "[t]he board must cause its official proceedings to be published once in the official newspaper of the district.")</p> <p>Finally, as to Ms. Kern's assertion that "[a]ll members of the attending public have a 'right' to hear all input" that any member of the public provides to a school board member, and that "all board members have an obligation to hear public input in its entirety," Mr. Waldspurger and Mr. Schraut wrote:</p> <p class="opinion_quote">School boards have the discretion to decide whether and when an opportunity for public comment will be provided. The OML does not require a period of public comment at a public school board meeting; the OML does not give a citizen the right to speak at a public school board meeting; and the OML does not impose an obligation on school boards to hear public input in its entirety." See Minn. Stat. Ch. 13D. In short, neither Dr. Bittman nor the Board was required to provide an opportunity for public comment during Dr. Bittman's presentation on October 18, 2011.</p> <p>The Commissioner acknowledges Ms. Kern's concern that the Board violated a purpose of the OML as articulated by the Minnesota Supreme Court, i.e., "to afford the public an opportunity to present its views to the [public body]." <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729, 735 (Minn. 2002). However, the OML does not provide the public with the right to speak at a public meeting.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Kern raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>School District 47, Sauk Rapids-Rice, complied with Minnesota Statutes, Chapter 13D, when it broke up into discussion groups during a public meeting.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: January 12, 2012</p> <hr /></td> </tr> </tbody> </table> </div>2677072670202662912022-01-18T19:24:36Z266258266264<custom:Link urlOnly="true" type="Component" destination="tcm:36-267905" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-12-22T16:14:00ZA school district asked about the classification of certain school board correspondence. Correspondence (email) sent from one individual to more than one school board member, or sent to one board member by more than one individual, is private data under Minnesota Statutes, section 13.601, subdivision 2, if neither the sender(s) nor board member(s) has previously made the email public. If such an email is classified as private data, the Commissioner opined that the school district is not required (in response to a data request) to seek a decision by the board member(s) or individual(s) senders as to whether s/he/they choose to make the email public. If such an email is classified as private data, it must be released in response to a data request if one board member or one individual sender chooses to make it public. If any sender or recipient has forwarded an email or shared the contents of an email with a person or entity (other than the district), the email is public data.December 22, 2011; School District 272 (Eden Prairie)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2011). It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On October 17, 2011, the Information Policy Analysis Division (IPAD) received a letter dated October 14, 2011, from Maggie R. Wallner, on behalf of Independent School District 272, Eden Prairie. In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD asked for clarification, which Ms. Wallner provided in a letter dated November 3, 2011.</p> <p>A summary of the facts follows. A District parent requested access to the following data:</p> <p class="opinion_quote">1. ll available information concerning the School District's contact in any form with any representatives of YFNS (Yes For Neighborhood Schools) and/or their attorneys. This [sic] requests include all copies of all phone logs and correspondence in any form, including email, between the School District, or any of its representatives (including, but not limited to School Board members) and: [certain specific individuals]r any other individual or group who associates themselves in any respect whatsoever with YFNS or its views. This request includes contact from YFNS to the School District or its agents and communication from the School Board or its agents to YFNS. [Emphasis omitted.]</p> <p class="opinion_quote">2. Copies of correspondence logs kept by the School District and Board members and/or [sic] of all emails, letters, phone calls or any correspondence from parents or any others that relates [sic] in any way, positive or negative, to the recent boundary decisions. [Emphasis omitted.]</p> <p>Ms. Wallner wrote:</p> <p class="opinion_quote"><a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/266661" title="11-006" target="_blank">Advisory Opinion No. 11-006</a> opined that an email sent to a school board chair from a member of the general public is classified as private data on both the individual who sent the email and the elected official to whom the individual sent the email', regardless of the classification (public/private) of the data contained in the email.</p> <p class="opinion_quote">Based on <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/266661" title="11-006" target="_blank">Advisory Opinion 11-006</a> we assume that email communication between a single Eden Prairie board member and a single individual is classified as private data regardless of the content of the emails. However [the] data request presents additional questions.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issues:</p> <p>1. Is correspondence (email) sent from an individual to more than one board member private data under Minnesota Statutes, section 13.601, subdivision 2, assuming that neither the individual (sender) nor board member(s) has previously made the email public?</p> <p>a. If such an email is classified as private data, is the School District required (in response to a data request) to seek a decision by the board member(s) as to whether he/she chooses to make the email public?</p> <p>b. If such an email is classified as private data, must it be released in response to a data request if one board member chooses to make it public, or must all board members (recipients) choose to make the email public?</p> <p>2. Is an email sent to a school board member by more than one individual private data under Minnesota Statutes, section 13.601, subdivision 2, assuming that neither the board member nor the individuals (senders) has previously made the email public?</p> <p>a. If such an email is classified as private data, is the School District required (in response to a data request) to seek a decision from the individual(s) senders as to whether he/she chooses to make the email public?</p> <p>b. If such an email is classified as private data, must it be released in response to a data request if one individual chooses to make it public, or must all of the individuals who were senders of the email choose to make the email public?</p> <p>3. If the emails in No. 1 and/or No. 2 are classified as private data, does the fact that a school board member(s) or individual(s) (as either sender or recipient) has shared the email with a person or entity (other than the School District) render the email public data thereafter? In other words, if a board member or individual has forwarded an email or shared the contents of an email with a person or entity (other than the School District), is the email public data and thus it must be released to a member of the public?</p> <p>4. Is an employee of the School District an “individual” under Minnesota Statutes, section 13.601, subdivision 2, assuming that the employee is acting outside his/her role as an employee?</p> <hr /> <h2>Discussion:</h2> <p>For purposes of this discussion, based upon the information Ms. Wallner provided, the Commissioner assumes that the District does not maintain the data in question, except to the extent necessary for the responsible authority to fulfill his/her duties to the school board. (The responsible authority for a school board is an employee of the District who is appointed by the board. See Minnesota Rules, part 1205.0200, subpart 14 (C).)</p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p><em><strong>Issue 1.</strong> Is correspondence (email) sent from an individual to more than one board member private data under Minnesota Statutes, section 13.601, subdivision 2, assuming that neither the individual (sender) nor board member(s) has previously made the email public?</em></p> <p class="opinion_quote"><em>(a) If such an email is classified as private data, is the School District required (in response to a data request) to seek a decision by the board member(s) as to whether he/she chooses to make the email public?</em></p> <p class="opinion_quote"><em>(b) If such an email is classified as private data, must it be released in response to a data request if one board member chooses to make it public, or must all board members (recipients) choose to make the email public?</em></p> <p>Minnesota Statutes, section 13.601, subdivision 2, classifies correspondence between individuals and elected officials as private data but also provides that the correspondence may be made public by either the sender or the recipient.</p> <p>The Commissioner acknowledges that the statutory language refers to the sender or the recipient, which could be read to mean that it applies only to those situations involving a single sender and a single recipient. However, pursuant to Minnesota Statutes, section 645.17, in ascertaining the intention of the legislature, the following presumptions may guide: the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; (2) the legislature intends the entire statute to be effective and certain.</p> <p>It is the Commissioner's opinion that Minnesota Statutes, section 13.601, subdivision 2, applies to situations in which there may be one or more sender and/or one or more recipient of any particular email correspondence. Accordingly, assuming that neither the individual (sender) nor board member(s) has previously made the email correspondence public, then that correspondence is private under section 13.601, subdivision 2.</p> <p>Regarding Issue 1 (a), it is the Commissioner's opinion that the School District, in response to a request for correspondence, is not required to seek a decision by the board member(s) as to whether he/she chooses to make the email public. Pursuant to Minnesota Statutes, section 13.03, subdivision 9, the classification of data is determined by the law applicable to the data at the time a request for access to the data is made. Here, at the time of the request, the email was private. Section 13.601 does not impose an affirmative obligation on the District to ask whether the sender or recipient(s) chooses to make it public.</p> <p>Regarding Issue 1 (b), if such an email is classified as private data, it must be released in response to a data request if only one board member chooses to make it public. Section 13.601 does not require that all board members must agree to make the email public, it affords the right to make correspondence public to each sender/recipient individually.</p> <p><em><strong>Issue 2.</strong> Is an email sent to a school board member by more than one individual private data under Minnesota Statutes, section 13.601, subdivision 2, assuming that neither the board member nor the individuals (senders) has previously made the email public?</em></p> <p class="opinion_quote"><em>(a) If such an email is classified as private data, is the School District required (in response to a data request) to seek a decision from the individual(s) senders as to whether he/she chooses to make the email public?</em></p> <p class="opinion_quote"><em>(b) If such an email is classified as private data, must it be released in response to a data request if one individual chooses to make it public, or must all of the individuals who were senders of the email choose to make the email public?</em></p> <p>The analysis of this issue is the same as for Issue 1. If neither the board member nor the sender(s) has made the correspondence public, it is private. The District is not obligated to ask any sender if s/he chooses to make it public. Any individual sender may choose to make the email public.</p> <p><em><strong>Issue 3.</strong> If the emails in No. 1 and/or No. 2 are classified as private data, does the fact that a school board member(s) or individual(s) (as either sender or recipient) has shared the email with a person or entity (other than the School District) render the email public data thereafter? In other words, if a board member or individual has forwarded an email or shared the contents of an email with a person or entity (other than the School District), is the email public data and thus it must be released to a member of the public?</em></p> <p>According to Minnesota Statutes, section 13.601, subdivision 2, if either a sender or a recipient of correspondence shares it with a person or entity other than the District, the correspondence is public, and, upon request, it must be provided to the requester.</p> <p><em>Issue 4.  Is an employee of the School District an “individual” under Minnesota Statutes, section 13.601, subdivision 2, assuming that the employee is acting outside his/her role as an employee?</em></p> <p>The Commissioner previously has opined that a government entity can protect correspondence between its elected officials and certain employees if the employees were writing as private citizens. However, if the employees were writing in their roles as employees, the entity cannot use Minnesota Statutes, section 13.601 to withhold the data. (See <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267479" title="07-004" target="_blank">Advisory Opinion 07-004</a>.)</p> <p>Therefore, if a District employee acting in his/her capacity as a private citizen, not as a District employee, wrote to a board member, the employee would be considered an for purposes of Minnesota Statutes, section 13.601, subdivision 2.</p> <p>The Commissioner has a final comment. The description of the data request at issue here refers to correspondence between representatives, including their attorneys, of an organization (YFNS) and District board members, as well as correspondence between other individuals or group who associate themselves in any respect whatsoever with YFNS or its views. In <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267479#/detail/appId/1/id/266863" title="10-023" target="_blank">Advisory Opinion 10-023</a>, the Commissioner opined:</p> <p class="opinion_quote"><em>The email in question is correspondence between Mayor Kuehn and Mr. Oldendorf. Although Mr. Oldendorf is an individual, the Commissioner does not believe the Legislature intended for the protection afforded under section 13.601, subdivision 2, to apply to an individual writing as a representative of an organization. First, and foremost, the classification of private applies to data on individuals (as opposed to data about organizations or businesses). See International Brotherhood of Electrical Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64 (Minn. 2009). It is unlikely that someone corresponding on behalf of an organization is writing about an issue as a private citizen and not about an issue related to the organization.</em></p> <p class="opinion_quote"><em>Based on the analysis above, if the correspondence between Mayor Kuehn and Mr. Oldendorf relates to an issue involving Mr. Oldendorf, as an individual, the data in the email can be protected by section 13.601, subdivision 2. If the correspondence relates to an issue involving an organization Mr. Oldendorf represents, such as the Gateway Trail Association, the data in the email cannot be protected under section 13.601, subdivision 2.</em></p> <p>Accordingly, correspondence between a board member and an individual who is authorized to represent YFNS is not subject to protection under section 13.601, and is presumptively public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Wallner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Correspondence (email) sent from an individual to more than one board member is private data under Minnesota Statutes, section 13.601, subdivision 2, if neither the individual (sender) nor board member(s) has previously made the email public. <br /> <br /> <p class="opinion_quote">(a) If such an email is classified as private data, the School District is not required (in response to a data request) to seek a decision by the board member(s) as to whether he/she chooses to make the email public.</p> <p class="opinion_quote">(b) If such an email is classified as private data, it must be released in response to a data request if one board member chooses to make it public.</p> </li> <li>An email sent to a school board member by more than one individual is private data under Minnesota Statutes, section 13.601, subdivision 2, assuming that neither the board member nor the individuals (senders) have previously made the email public. <br /> <br /> <p class="opinion_quote">(a) If such an email is classified as private data, the School District is not required (in response to a data request) to seek a decision from the individual(s) senders as to whether he/she chooses to make the email public.</p> <p class="opinion_quote">(b) If such an email is classified as private data, it must be released in response to a data request if one individual chooses to make it public.</p> </li> <li>If the emails in No. 1 and/or No. 2 are classified as private data, the fact that a school board member(s) or individual(s) (as either sender or recipient) has shared the email with a person or entity (other than the School District) renders the email public data thereafter. In other words, if a board member or individual has forwarded an email or shared the contents of an email with a person or entity (other than the School District), the email is public data and thus it must be released to a member of the public.</li> <li>An employee of the School District is an “individual” under Minnesota Statutes, section 13.601, subdivision 2, assuming that the employee is acting outside his/her role as an employee.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: December 22, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2679052022-01-18T19:26:12Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267140" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-12-09T16:14:43ZA minor student is alleged to have engaged in the maltreatment of another minor student; district employees filed a report under Minnesota Statutes, section 626.556. The district asked what data, including surveillance video from the hallways, written communication between district staff and the social services agency, and amongst district employees and administration, that it must provide to the parent about her/his child, who is the subject of the allegations of abuse. The Commissioner discussed that it appears that the data in question are classified either by Minnesota Statutes, sections 13.32 or 626.556, subdivision 11. It is also possible that some of the data are classified by Minnesota Statutes, section 13.43. The parent of a minor student has the right to gain access to private data about him/her. The identities of the mandated reporters are confidential. December 9, 2011; School District 23 (Frazee-Vergas)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On October 21, 2011, the Information Policy Analysis Division (IPAD) received a letter dated October 19, 2011, from Kristi Hastings, an attorney representing School District 23, Frazee - Vergas Public Schools. In her letter, Ms. Hastings asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>A summary of the facts as Ms. Hastings provided them is as follows. In the opinion request she wrote:</p> <p class="opinion_quote">School District employees received reports from a student that lead [sic] the employees to file a mandatory report of maltreatment of a minor pursuant to Minnesota Statute section 626.556 with the local social services agency. </p> <p>Ms. Hastings stated that the District then received a data request for certain data from the parent/guardian of the minor (who also is the individual alleged to have engaged in the maltreatment). She wrote:</p> <p class="opinion_quote">What information must the District provide to the requestor in light of the mandatory report? Clearly, the District can withhold the names of the individuals who filed the section 626.556 report, but the District seeks guidance as to the other elements requested by the parent as it relates to his/her child (but also as to him/her as the subject of the allegations of abuse). The [parent/guardian] appears to be seeking surveillance video from the hallways and written communication between district staff and the social services agency and amongst district employees and administration. The surveillance videos would certainly show the identity of the district employees who made the mandatory report to the local social services agency.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Hasting's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data School District 23, Frazee - Vergas, maintains related to its filing of a report of maltreatment of a minor, pursuant to Minnesota Statutes, section 626.556?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.32, classifies data that public educational institutions maintain about parents and students. With some exceptions, most data about parents and students are classified as private. (Minnesota Statutes, section 13.32, subdivision 3.)</p> <p>Minnesota Statutes, section 626.556, is the statutory provision that addresses reporting of maltreatment of minors. In relevant part, subdivision 11 of section 626.556 states:</p> <p class="opinion_quote">ll records concerning individuals maintained by a local welfare agency including any written reports filed under subdivision 7, shall be private data on individuals The records shall be collected and maintained in accordance with the provisions of chapter 13. An individual subject of a record shall have access to the record in accordance with those sections, except that the name of the reporter shall be confidential while the report is under assessment or investigation except as otherwise permitted by this subdivision. After the assessment or investigation is completed, the name of the reporter shall be confidential. </p> <p>Given the facts as Ms. Hastings presented them, it appears some of the data in question might be classified by Minnesota Statutes, section 13.32, and some of the data are classified by Minnesota Statutes, section 626.556. It is also possible some of the data are classified by Minnesota Statutes, section 13.43 (personnel data). Because the Commissioner has not seen the data and does not understand the facts and circumstances as the District does, the District must make the determination as to what data are classified by which statute.</p> <p>Data classified by Minnesota Statutes, section 13.32, are private - unless one of the exceptions in section 13.32 applies. Private data are accessible to the subject of the data. If the data subject is a minor, the parent/guardian has access to the data. (Minnesota Statutes, section 13.02, subdivision 8.)</p> <p>Data classified by Minnesota Statutes, section 626.556, subdivision 11, also are private. However, the identity of the mandated reporter is confidential.</p> <p>Finally, given the likelihood that some of the data in question, including the videos, are about multiple data subjects, the Commissioner notes his comments in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003" title="11-013" target="_blank">Advisory Opinion 11-013</a> regarding data that may be inextricably intertwined:</p> <p class="opinion_quote">In such cases, when one of the data subjects makes a request for access to data about him/herself, it is incumbent upon the government entity to try to separate the data and provide the requestor with data about him/her without releasing private data about the other data subject(s). If separation is impossible, it may be necessary for the entity to withhold the entire document.</p> <p class="opinion_quote">In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267622" title="01-014" target="_blank">Advisory Opinion 04-014</a>, the Commissioner discussed <em>Northwest Publication</em>s:</p> <p class="opinionquoteinquote">In <em>Northwest Publications, Inc. v. City of Bloomington</em>, the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267649" title="03-018" target="_blank">03-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267878" title="03-001" target="_blank">03-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267448" title="00-065" target="_blank">00-065</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267552" title="96-002" target="_blank">96-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267854" title="94-034" target="_blank">94-034</a>.)</p> <p class="opinionquoteinquote">Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in <em>Northwest Publications, Inc.</em>, maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Hastings raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>It appears the data in question are classified either by Minnesota Statutes, sections 13.32 or 626.556, subdivision 11. It is also possible that some of the data are classified by Minnesota Statutes, section 13.43. If the data are private, the data subject has access to the data about him/her. If the data subject is a minor, his/her parent/guardian has access to the data. The identity of the mandated reporter is confidential.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: December 9, 2011</p> <hr /> <br /></td> </tr> <tr> <td align="left" valign="top" /> </tr> </tbody> </table> </div>2671402671332022-01-18T19:26:11Z266258266262266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267261" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-11-23T16:14:43ZAn employee asked if his rights were violated when his county employer collected his fingerprints and other private data, including Social Security number (SSN), and did not provide a Tennessen warning notice (see Minnesota Statutes, section 13.04, subdivision 2) prior to collecting the data. The Commissioner discussed the contents of an email sent to all county staff prior to the data collection (which the county argued constituted the Tennessen notice) and found that it met some of the notice requirements. However, the notice did not adequately explain the consequences of supplying or not supplying the fingerprints. In addition, going forward, the Commissioner discussed that it would be helpful to clearly label a Tennessen notice as such. Finally, the Commissioner noted that if an entity is collecting an individual’s SSN, federal law imposes some additional notice requirements. November 23, 2011; Dakota County Attorney's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On September 19, 2011, the Information Policy Analysis Division (IPAD) received a letter dated September 12, 2011, from Michael Ring. In his letter, Mr. Ring asked the Commissioner to issue an advisory opinion regarding his rights related to certain data collected by his employer, the Dakota County Attorney's Office. IPAD requested additional information/clarification, which Mr. Ring provided on October 5, 2011.</p> <p>IPAD, on behalf of the Commissioner, wrote to James Backstrom, Dakota County Attorney, in response to Mr. Ring's request. The purposes of this letter, dated October 19, 2011, were to inform him of Mr. Ring's request and to ask him to provide information or support for the Office's position. On November 3, 2011, IPAD received a response, dated same, from Mr. Backstrom.</p> <p>A summary of the facts as Mr. Ring presented them is as follows. He wrote in his opinion request:</p> <p class="opinion_quote">The Dakota County Attorney's Office required all professional and administrative staff to be fingerprinted recently. That process included collection of not only our fingerprints, it also included collecting names, gender, state [sic] of birth, height and weight. When I was fingerprinted on June 3, 2011, the deputy sheriff also requested my social security number for insertion on the fingerprint card. No Tennessen warning was given prior to collection of that data.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Ring's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Dakota County Attorney's Office comply with Minnesota Statutes, Chapter 13, when it collected fingerprints from an employee and did not provide a Tennessen warning notice prior to collecting the data?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Data about employees are classified pursuant to Minnesota Statutes, section 13.43. Certain data about employees are public (section 13.43, subdivision 2) and certain data are private (section 13.43, subdivision 4).</p> <p>When a government entity collects private or confidential data about an individual from that individual, the entity must provide a notice, commonly referred to as a Tennessen warning. (Minnesota Statutes, section 13.04, subdivision 2.) This notice must contain the following: (1) the purpose and intended use of the data; in other words, why the entity is collecting the data and how it will use the data; (2) whether the individual can refuse or is legally required to provide the requested data; (3) what the consequences are of supplying or not supplying the data; and (4) the identity of other persons or entities outside of the collecting agency authorized by state or federal law to receive the data.</p> <p>In his comments to the Commissioner, Mr. Backstrom wrote that to carry out its statutory duty to prosecute crime, the County Attorney's Office requires access to the Criminal Justice Information System (CJIS). He explained that CJIS is a set of state and federal electronic data bases that includes records of individuals that have been collected by state and federal law enforcement agencies engaged in the investigation and prosecution of crime.</p> <p>Mr. Backstrom further wrote that CJIS is managed by the Minnesota Bureau of Criminal Apprehension (BCA), and that the BCA and the FBI impose personnel security policies and procedures on all law enforcement agencies as a condition of the BCA's providing electronic access to CJIS. He stated that one such requirement is that the identity of all persons with direct access to a computer terminal that is linked to CJIS or the right to unescorted access to the area where the terminals are located must be verified by a national fingerprint-based record check. Mr. Backstrom wrote, All employees and volunteers in my Office have either direct access to computer terminals that are linked to CJIS or unescorted access to the areas where these terminals are located.</p> <p>Mr. Backstrom wrote that an email the office manager sent to all staff on May 18, 2011, constituted the Tennessen notice required by Minnesota Statutes, section 13.04, subdivision 2. Mr. Backstrom provided a copy of the email to the Commissioner and provided the following explanation:</p> <p class="opinion_quote">[The] email explains the purpose and intended use of the private data, states that the employees and volunteers are required to provide the data, states that failure to comply will result in termination of the agreement with the BCA that allows for access to CJIS and identifies that the data will be released to the BCA. The email directive constitutes managerial direction from the employer. Accordingly, the normal inference from such direction is that failure to comply with it would amount to insubordination and would warrant negative employment action.</p> <p>Mr. Ring's question is whether the Office complied with Minnesota Statutes, Chapter 13, when it collected his fingerprints on June 3, 2011. The Commissioner has reviewed the May 18, 2011, email, and thinks it meets some requirements of a Tennessen notice. First, in stating that the fingerprints will be sent to BCA so it can conduct criminal background checks and that background checks are required because of new state and federal regulations, the email explains the purpose and intended use within the Office and that staff are legally required to provide fingerprints.</p> <p>Second, in stating that fingerprints are going to the BCA, the Office informed Mr. Ring of outside persons or entities to which the Office has authority to release the fingerprints.</p> <p>However, where the email notice falls short is in informing Mr. Ring of the consequences of supplying or not supplying his fingerprints. While the email states that failure to comply with the fingerprinting requirement means that the County Attorney's Office will no longer have access to CJIS, it does not explain the consequences to Mr. Ring, e.g., that failure to comply will result in negative employment action (as Mr. Backstrom described above). As the Commissioner has discussed in many previous advisory opinions, the purpose of the notice is to provide individuals with sufficient information to decide whether to provide the requested data.</p> <p>In addition, going forward, it might be helpful to clearly label a Tennessen notice as such and explain that it is being supplied as required by Minnesota Statutes, section 13.04, subdivision 2. Nowhere in the May 18, 2011, email is it explained that the email constitutes a Tennessen notice.</p> <p>It should be noted that both Mr. Ring and Mr. Backstrom discussed that in August 2011, almost three months after the Office collected Mr. Ring's fingerprints, Mr. Ring signed a consent form giving permission for the Office to release his fingerprints to the BCA. While this seems to indicate the Office can share the data with the BCA, it does not negate the obligation the Office had to provide a Tennessen notice at the time of collection. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488" title="95-028" target="_blank">95-028</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488#/detail/appId/1/id/267818" title="98-007" target="_blank">98-007</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488#/detail/appId/1/id/267691" title="04-009" target="_blank">04-009</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488#/detail/appId/1/id/267514" title="04-010" target="_blank">04-010</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488#/detail/appId/1/id/267652" title="07-009" target="_blank">07-009</a>.)</p> <p>Finally, as the Commissioner previously has opined, if an entity is collecting an individual's Social Security number (SSN), federal law imposes some additional notice requirements. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267488#/detail/appId/1/id/267764" title="01-040" target="_blank">01-040</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/266882" title="04-020" target="_blank">04-020</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267792" title="04-048" target="_blank">04-048</a>.) (See also Federal Privacy Act of 1974, 5 U.S.C. section 552a note - Disclosure of Social Security Number.) The May 18, 2011, email does not meet all the federal notice requirements; therefore, the Office has not met its obligation under federal law. Mr. Backstrom did state that the Office ceased collection of SSNs but, apparently, not before it collected Mr. Ring's fingerprints. Mr. Backstrom wrote:</p> <p class="opinion_quote">[The Sheriff's Office initially requested] that the employees and volunteers, at the time of fingerprinting, supply their social security number. However, that department subsequently learned that such information was not necessary in order to perform the national background checks. Accordingly, fingerprint cards with social security numbers on them were shredded the fingerprint cards were reprinted, and the affected employees had to sign the new fingerprint cards, which did not contain social security numbers.</p> <p>Having learned the fingerprint cards with SSNs were collected in error, it is commendable that the Office disposed of them.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Ring raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">When the Dakota County Attorney's Office collected fingerprints from an employee, it provided some components of a Tennessen Warning notice, but not all. Therefore, it complied, in part, and did not comply, in part, with Minnesota Statutes, Chapter 13.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: November 23, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2672612662692023-01-06T16:08:25Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267238" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-11-07T16:14:43ZDid the City of Sauk Rapids comply with Minnesota Statutes, Chapter 13, when it denied access to data provided to the City and/or the City’s contractor by a private company that the City then used to determine whether to provide financial assistance to the company?November 7, 2011; City of Sauk Rapids36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong> <br /></p> <h2>Facts and Procedural History:</h2> <p>On August 25, 2011, the Information Policy Analysis Division (IPAD) received a letter dated August 23, 2011, from John Bodette of the St. Cloud Times. In his letter, Mr. Bodette asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the City of Sauk Rapids. IPAD requested additional information, which Mr. Bodette provided on September 7 and 19, 2011.</p> <p>IPAD, on behalf of the Commissioner, wrote to Ross Olson, City Administrator, in response to Mr. Bodette's request. The purposes of this letter, dated September 21, 2011, were to inform him of Mr. Bodette's request and to ask him to provide information or support for the City's position. On October 5, 2011, IPAD received a response, dated same, from Adam Ripple, an attorney representing the City.</p> <p>A summary of the facts as Mr. Bodette provided them is as follows. He wrote in the opinion request:</p> <p class="opinion_quote">The City of Sauk Rapids, in partnership with the Minnesota Department of Employment and Economic Development, is in the process of arranging a $500,000 forgivable loan (grant) to The Coleman Companies Inc. for an expansion that will add about 100 jobs at Coleman's Sauk Rapids factory. The loan funds will come from public sources.</p> <p class="opinion_quote">On Aug. 12, 2011, [a newspaper reporter] learned that the Sauk Rapids City Council had scheduled a special meeting for Aug. 15 to act on a proposed financial information agreement requested by The Coleman Companies Inc. The agreement states that city and state staff will review Coleman financial documents as part of the city's due diligence in deciding whether to make the loan, but that they will then return all of the financial documents to the company before advising the City Council on whether the documentation supports a decision to proceed with the loan. The city claims that the agreement is consistent with [Minnesota Statutes, Chapter 13] and contends that it will not have to make any of the records received from Coleman public because the city will no longer have them in its physical possession when the loan is approved by the city council.</p> <p>Mr. Bodette provided to the Commissioner a copy of the agreement and a copy of a Sauk Rapids City Council Request for Action document, dated August 22, 2011, that contains background information about the agreement. In part, the document states:</p> <p class="opinion_quote">Coleman is a privately held corporation and its financial information is not public information. [Minnesota Statutes, Chapter 13] classifies the financial information as private nonpublic data during the review process. However, after the grant is awarded much of Coleman's financial information would then be reclassified as public data. To avoid the disclosure of the information, the City will return the information to Coleman after it has been reviewed.</p> <p class="opinion_quote">The Agreement is consistent with [Minnesota Statutes, Chapter 13], but most importantly for Coleman, the City agrees not to make or retain copies and to return all the information to Coleman before it becomes public information.</p> <p>Mr. Bodette wrote that on August 15, 2011, the City Council voted to approve the financial agreement with the company effectively approving the return of the company's financial information without public disclosure.</p> <p>On August 15, 2011, the reporter made a data request to the City for copies of all financial information for The Coleman Company Inc. that becomes public after the grant is awarded.</p> <p>Mr. Bodette wrote that on September 12, 2011, the City Council approved financial assistance for The Coleman Companies Inc., and that the reporter renewed her request for data.</p> <p>Mr. Bodette stated:</p> <p class="opinion_quote">City officials stated that they did not possess Coleman financial documents; rather, they based their due diligence on a recommendation from a consultant who is said to have reviewed the documents at Coleman offices.</p> <p class="opinion_quote">The consultant was retained by the city for the purpose of reviewing the financial documents and therefore would appear to be acting as the city's agent in this context.</p> <p class="opinion_quote">The [newspaper] maintains that the city's use of a consultant does not alter the application of the Minnesota Official Records Act, Minn. Stat. 15.17.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Bodette's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Sauk Rapids comply with Minnesota Statutes, Chapter 13, when it denied access to data provided to the City and/or the City's contractor by a private company that the City then used to determine whether to provide financial assistance to the company?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In responding to a data request, a government entity must provide the data, advise that the data are classified such that the requestor is denied access, or inform the requestor that the data do not exist.</p> <p>In addition, Minnesota Statutes, section 15.17, requires government entities to create records that document their official activities. Pursuant to Minnesota Statutes, section 138.17, official records must be kept for time periods as prescribed in the entity's record retention schedule.</p> <p>Further, if a government entity contracts with a private person to perform any of its functions, data related to performance of the contract are subject to the requirements of Minnesota Statutes, Chapter 13, and the private person must comply with those requirements as if it were a government entity. (Minnesota Statutes, section 13.05, subdivision 11.)</p> <p>In his comments to the Commissioner, Mr. Ripple wrote:</p> <p class="opinion_quote">The St. Cloud Times seeks documents that are in the sole possession of The Coleman Company, Inc. The documents were viewed by Ehlers, Inc., at Coleman's office. The documents were not submitted to or received by the City of Sauk Rapids. Neither the City nor Ehlers have these documents, and no employee of the City has even seen these documents, let alone possessed them at any time.</p> <p class="opinion_quote">The City has no legal obligation to receive or even review the documents in question, but the City of Sauk Rapids decided to verify representations made by The Coleman Company, Inc. and utilized the services of Ehlers, Inc. to assist the City in reviewing Coleman's financial records. However, Coleman was concerned about the release of confidential information and refused to physically provide to Ehlers or to the City its confidential documents. To move past this hurdle and ensure that the City did not miss a stellar business opportunity, the City decided to have Ehlers, Inc. perform the review of the financial records at Coleman's business offices. Under this approach, the representations made by Coleman could be reviewed by Ehlers with a report submitted to the City Council. The City performed its verification, without compromising the confidentiality of Coleman's records, under a process that was fully transparent.</p> <p class="opinion_quote">On August 26th, Ehlers went to the Coleman facility in Sauk Rapids and reviewed their books. Ehlers did not retain copies of any data or take detailed notes. Ehlers reviewed, but did not acquire possession of, financial documents and reported its findings back to the City. </p> <p class="opinion_quote">The St. Cloud Times has all of the data that is possessed by the City. The Ehlers report has been disclosed to the Times, and the Times has thus had access to all data that the City has, or has ever had in connection with this matter. </p> <p>The City's response to the newspaper is that neither the City, nor its contractor, collected and is maintaining any of the requested data. The problem with that response, however, is that for the City to meet its obligations under Minnesota Statutes, section 15.17, it must make and preserve all records necessary to a full and accurate knowledge of [its] official activities. Certainly, verifying a corporation's financial viability before providing it with $500,000 in financial assistance is an official activity. Therefore, because of the interplay between Minnesota Statutes, Chapter 13, and Minnesota Statutes, sections 15.17 and 138.17, the City should maintain data it used to determine financial viability for the time period specified in the City's retention schedule, and should have provided data classified as public to the newspaper. The City did not; therefore, it is not in compliance with Chapter 13 or section 15.17. As the Commissioner wrote in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267846" title="08-026" target="_blank">08-026</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/266763" title="10-017" target="_blank">10-017</a>:</p> <p class="opinion_quote">Section 15.17, subdivision 4, states that access to records containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.</p> <p>See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267464" title="94-035" target="_blank">94-035</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267385" title="98-017" target="_blank">98-017</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267529" title="10-018" target="_blank">10-018</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/266851" title="11-001" target="_blank">11-001</a>.</p> <p>Finally, it is Minnesota Statutes, section 13.591, that classifies data a business submits when requesting financial assistance or a benefit financed by public funds. Subdivision 1 of section 13.591 classifies certain data as private or nonpublic:</p> <p class="opinion_quote">financial information about the business, including credit reports; financial statements; net worth calculations; business plans; income and expense projections; balance sheets; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>Subdivision 2 of section 13.591 provides that if the business receives financial assistance or a benefit financed by public funds, the data described in subdivision 1 become public except for the following: business plans; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>Any other data submitted by the business would be public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Bodette raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Sauk Rapids did not comply with Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 15.17, when it denied access to data about a private company the City used in determining whether to provide financial assistance to the company.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: November 7, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2672382666802663722022-01-18T19:26:08Z266258266262266263266358266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267555" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-11-01T15:14:43ZShould a prosecutor’s office require a release of information signed by the victim prior to releasing data to that victim’s legal representative under Minnesota Statutes, section 13.82, subdivision 13? November 1, 2011; Clay County Attorney's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On September 13, 2011, the Information Policy Analysis Division (IPAD) received a letter dated same, from Michelle Lawson, Interim Clay County Attorney. In her letter, Ms. Lawson asked the Commissioner to issue an advisory opinion regarding certain government data and the data practices rights afforded the subjects of those data.</p> <p>A summary of the facts as Ms. Lawson provided them is as follows. She wrote in the opinion request:</p> <p class="opinion_quote">The Clay County Attorney's Office is developing a policy related to the release of otherwise confidential information to victims that are represented by an attorney. Active criminal investigative data is classified as confidential under M.S.A. 13.82, subdivision 7 until the data is presented in Court or the case becomes inactive. However, crime victims and their legal representatives have access to the otherwise confidential active criminal investigative data under M.S.A. 13.82, subdivision 13. In terms of our policy, can/should our office require a release of information signed by the victim prior to releasing information to an attorney for the victim, in lieu of the victim themselves under 13.82, subdivision 13.</p> <p class="opinion_quote">The implication that this has for prosecutors is that we are specifically required by statute to provide a victim with this information that would not be accessible to the general public. In addition to having the statutory obligation to provide victims with this information, our prosecuting attorneys are also subject to the Lawyers Rules of Professional Responsibility. Specifically, Rule 4.2 of the Lawyers Rules of Professional Responsibility prohibits an attorney from having direct contact with a represented party; instead all communication with that party must be through their legal counsel. In an attempt to reconcile these competing obligations when we encounter victims that are represented by an attorney I am developing an office policy which addresses that scenario. </p> <p>Ms. Lawson wrote that she was copying her opinion request to the Assistant Director of the Office of Lawyers Responsibility.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Lawson's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Should a prosecutor's office require a release of information signed by the victim prior to releasing data to that victim's legal representative under Minnesota Statutes, section 13.82, subdivision 13?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Active criminal investigative data maintained by law enforcement agencies are classified as confidential (data about individuals) and protected nonpublic (data not about individuals). (Minnesota Statutes, section 13.82, subdivision 7.) Generally, confidential/protected nonpublic data are accessible to law enforcement agency staff who need the data to do their work but not to the public and not to the subject(s) of the data. In addition, and of particular relevance here, these data can be released to entities/persons as authorized by law. (Minnesota Statutes, sections 13.04, subdivision 3; 13.05, subdivision 3; and Minnesota Rules Part 1205.0600.)</p> <p>One such statutory provision authorizing specific persons access to confidential/protected nonpublic data is Minnesota Statutes, section 13.82, subdivision 13, which allows law enforcement agencies, in certain situations, to release active investigative data to a victim or his/her legal representative:</p> <p class="opinion_quote">On receipt of a written request, the prosecuting authority shall release investigative data collected by a law enforcement agency to the victim of a criminal act or alleged criminal act or to the victim's legal representative unless the release to the individual subject of the data would be prohibited under section 13.821 or the prosecuting authority reasonably believes:</p> <p class="opinion_quote">(a) that the release of that data will interfere with the investigation; or</p> <p class="opinion_quote">(b) that the request is prompted by a desire on the part of the requester to engage in unlawful activities.</p> <p>Information collected, created, and maintained related to a criminal investigation likely will have more than one subject, often times including data about a perpetrator and a victim(s). If the confidential/protected nonpublic data are about individuals other than the victim, Minnesota Statutes, section 13.82, subdivision 13, provides the statutory authority for law enforcement to release the data to either the victim or his/her legal representative.</p> <p>The analysis is the same if the data are about the victim; Minnesota Statutes, section 13.82, subdivision 13, provides the authority for law enforcement to release the data to the victim or his/her legal representative. Law enforcement is not required to obtain informed consent from the victim before releasing the data to his/her legal representative because a data subject cannot give consent to release confidential data.</p> <p>If the victim is a minor, the parent or guardian also has access to the data unless the minor requests that law enforcement not release the data and law enforcement determines that withholding the data would be in the best interest of the minor. (Minnesota Statutes, section 13.02, subdivision 8, and Minnesota Rules Part 1205.0500.) Again, for the reasons previously stated, neither the minor victim nor his/her parent or guardian would be required to give informed consent for law enforcement to release data about the minor to the minor's legal representative.</p> <p>Also, if the case involves certain types of crimes, and the victim is incompetent, incapacitated, or deceased, the term "victim" includes the family members, guardian, or custodian. (Minnesota Statutes, section 611A.01- crime victims, definitions) In other words, if Chapter 611A applies, the language in Minnesota Statutes, section 13.82, subdivision 13, gives law enforcement authority to release not public criminal investigative data to certain individuals acting in place of the victim and to those individuals' legal representatives.</p> <p>Finally, it is important to point out that government entities are required to protect government data. (Minnesota Statutes, section 13.05, subdivision 5.) Therefore, before the County releases any not public investigative data to the victim or his/her legal representative, it should take reasonable measures to ensure they are who they purport to be, and also to have some type of policy for documenting that the attorney represents the victim.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Lawson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">A prosecutor's office is not required to obtain a release of information signed by the victim prior to releasing data to that victim's legal representative under Minnesota Statutes, section 13.82, subdivision 13.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: November 1, 2011</p> <hr /> </td> </tr> </tbody> </table> </div>2675552667322667332665002022-01-18T19:26:07Z266258266262266263266358266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267384" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-10-21T15:14:43ZDid the City of Faribault comply with Minnesota Statutes, Chapter 13, in denying access to city score sheets of local softball games?October 21, 2011; City of Faribault36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On August 31, 2011, the Information Policy Analysis Division (IPAD) received a letter dated August 26, 2011, from Mark Anfinson, on behalf of the Faribault Daily News. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the City of Faribault. IPAD asked for additional information, which Mr. Anfinson provided on September 6, 2011.</p> <p>IPAD, on behalf of the Commissioner, wrote to Chuck Whiting, City Administrator, in response to Mr. Anfinson's request. The purposes of this letter, dated September 7, 2011, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. On September 23, 2011, IPAD received a response, dated same, from Scott Riggs, the City's attorney.</p> <p>A summary of the facts as Mr. Anfinson provided them is as follows. The newspaper staff requested access to softball score sheets. Mr. Whiting responded that the City considered the data to be private pursuant to Minnesota Statutes, section 13.548 (social recreational data).</p> <p>Newspaper staff wrote to Mr. Whiting, asking him to reconsider the City's position:</p> <p class="opinion_quote">According to the statute, that citation refers very specifically to data collected and maintained by political subdivisions (cities) "for the purpose of enrolling individuals in recreational and other social programs."</p> <p class="opinion_quote">Player rosters included on softball game score sheets are not collected by the city for the purpose of enrolling those individuals in the softball program. The newspaper's intent in seeking the score sheets is not to learn more about the individual players, but rather to inform our readers, as we have for years in the past, of the results of the games.</p> <p>Mr. Whiting again denied access to the data.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Faribault comply with Minnesota Statutes, Chapter 13, in denying access to city score sheets of local softball games?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Of relevance here, Minnesota Statutes, section 13.548, classifies, as private, the name, address, telephone number, and any other identifying information about an individual that a political subdivision collects and maintains <em>for the purpose of enrolling individuals in recreational and other social programs</em>.</p> <p>In his comments to the Commissioner, Mr. Riggs wrote, "The softball program in question is solely run by the City and its Park and Recreation Department."</p> <p>Mr. Riggs further explained that prior to the 2011 softball season, the City created, and made available to the public, full score sheets that included all "activities" associated with softball games - runs, hits, walks, errors, etc. He continued:</p> <p class="opinion_quote">Beginning with the 2011 softball season, the score sheets only depict the score and the names of enrolled individuals in the softball program. ... The score sheets are collected by the umpires and forwarded to the City to maintain compliance as noted herein. The dual purpose of the present score sheets is to determine that individuals are properly enrolled and able to participate in the softball program, as well as to report the final scores of the games.</p> <p>Mr. Riggs defended the City's position that the data are not public under Minnesota Statutes, section 13.548 but also wrote, "[t]he City is willing to work with the requestor and willing to provide the data upon the issuance of an advisory opinion that such score sheet data, including the names, must be produced."</p> <p>Mr. Riggs provided a copy of a blank score sheet to the Commissioner.</p> <p>In his opinion request, Mr. Anfinson asserted that the data in the score sheets are not protected by Minnesota Statutes, section 13.548:</p> <p class="opinion_quote">The only information that the score sheets contain is player names along with basic statistical data about the game ... However, the score sheet information - including the players' names - is clearly not collected and maintained by the city "for the purpose of enrolling individuals in recreational and other social programs," but only to document results of games. Thus by its own terms, section13.548 would not apply to the score sheets. Furthermore, we are not aware of any other statute that would plausibly classify the players' names, or the remainder of the information appearing on the score sheets as not public.</p> <p>Mr. Anfinson further wrote, "Even if section 13.548 could somehow be interpreted to encompass the score sheets, the names of the players would still be publicly accessible because by playing in the softball games, the players voluntarily and publicly identify themselves as participants in the recreational activity."</p> <p>He elaborated:</p> <p class="opinion_quote">The situation seems closely analogous to athletic contests conducted by public schools. Even though the names of public school students linked to information about their athletic participation may not be classified as public if not listed by the school as directory information, the students voluntarily disclose their identities, and waive any privacy claims that might otherwise exist by participating in the public athletic events.</p> <p>(See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267834" title="03-010" target="_blank">Advisory Opinion 03-010</a>, in which the Commissioner opined that although videotapes of a public event, such as an athletic contest that is open to the public, might contain private data, the data subjects have, in effect, consented to release of those data by participating in the event.)</p> <p>The Commissioner agrees with Mr. Anfinson that the current situation is similar to that discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267834" title="03-010" target="_blank">03-010</a>. Although it seems the names the umpire collects at each game are private because s/he is comparing that information with enrollment data each of the participants originally provided to the City, by agreeing to participate in games that are held in a public place, the players have, in effect, given implied consent for their names to be released. The fact they are playing softball, the team they play for, and statistical information tied to each player is all public. The score of each game is public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Anfinson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Faribault did not comply with Minnesota Statutes, Chapter 13, in denying access to City score sheets of local softball games. Although the names of the players likely are private, the data subjects have implicitly given consent to release of their names and associated game data by participating in games that are open to the public.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: October 21, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2673842664002671162022-01-18T19:26:07Z266258266323266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268003" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-09-08T15:15:43ZPursuant to Minnesota Statutes, Chapter 13, must the City of Hibbing provide access to the following data to a former employee: written informal complaints and observations about that former employee made by one or more City employees?September 8, 2011; City of Hibbing36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On August 1, 2011, the Information Policy Analysis Division (IPAD) received a letter dated July 29, 2011, from Pamela L. VanderWiel, attorney for the City of Hibbing. In her letter, Ms. VanderWiel asked the Commissioner to issue an advisory opinion regarding the classification of certain data X, a former City employee, requested, representative copies of which Ms. VanderWiel provided. IPAD asked for clarification, which she provided in a letter dated August 15, 2011.</p> <p>In a letter dated August 17, 2011, IPAD wrote to X inviting him/her to submit comments; X did not do so.</p> <p>A summary of the facts as presented by Ms. VanderWiel follows. X asked for all correspondence, including e-mails sent between and among City Council members and the Mayor, or other individuals, relating to X. Ms. VanderWiel wrote:</p> <p class="opinion_quote">In the course of reviewing documents potentially responsive to this request, the City has identified a number of emails from one or more City employees to one or more City Council members, informally commenting or complaining about [X's] activities while at work. No formal complaint about [X] was ever made, and the data was never used as a basis for discipline.</p> <p class="opinion_quote">It is the City's position that these email communications are private personnel data' about both [X] and the author. The communications reveal the identity of one or more individuals who voiced their concerns about [X], and reveal as much about the work environment experienced by the complainant(s) as they do about [X].</p> <p>Ms. VanderWiel also stated that the data cannot be redacted. Citing <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509, 511 (Minn. Ct. App. 1993), she wrote that even if the City redacted the name of the employee(s), X, due to his/her former position with the City, would [be able] to identify the author(s) of these communications easily . For that reason, the City believes it is proper to withhold the documents in their entirety.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. VanderWiel's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, must the City of Hibbing provide access to the following data to a former employee: written informal complaints and observations about that former employee made by one or more City employees?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. Ms. VanderWiel stated that the complainant-employee(s) did not lodge a formal complaint(s) and the City did not take disciplinary action.</p> <p>Ms. VanderWiel wrote:</p> <p class="opinion_quote">In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267552" title="96-002" target="_blank">Advisory Opinion 96-002</a>, the Commissioner advised the City of Mahtomedi that information identifying City-employee complainants on nonpending police department internal affairs complaint forms was classified as private personnel data about the complainants. The emails in this circumstance are no different. The communications reveal the identity of one or more individuals who voiced their concerns about [X], and reveal as much about the work environment experienced by the complainant(s) as they do about [X].</p> <p>Upon examination of the sample data Ms. VanderWiel provided, it appears that the documents contain private personnel data about more than one individual. In such cases, when one of the data subjects makes a request for access to data about him/herself, it is incumbent upon the government entity to try to separate the data and provide the requestor with data about him/her without releasing private data about the other data subject(s). If separation is impossible, it may be necessary for the entity to withhold the entire document.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267622" title="04-014" target="_blank">Advisory Opinion 04-014</a>, the Commissioner discussed Northwest Publications:</p> <p class="opinion_quote">In <em>Northwest Publications, Inc. v. City of Bloomington</em>, the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267649" title="03-018" target="_blank">03-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267552#/detail/appId/1/id/267878" title="03-001" target="_blank">03-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267448" title="00-065" target="_blank">00-065</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267552" title="96-002" target="_blank">96-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267552#/detail/appId/1/id/267854" title="94-034" target="_blank">94-034</a>.)</p> <p class="opinion_quote">Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in <em>Northwest Publications, Inc.</em>, maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately.</p> <p>According to Ms. VanderWiel, the identities of the employees cannot be redacted from the documents at issue, because to do so would render the remaining parts of the document with little informational value. The Commissioner agrees it is reasonable for the City to take the position here that the data in question are inextricably intertwined and may be withheld in their entirety.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. VanderWiel raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, the City of Hibbing may not provide access to the following data to a former employee: written informal complaints and observations about that former employee made by one or more City employees.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: September 8, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2680032663432022-08-29T14:01:01Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267109" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-09-08T15:14:43ZIs the Dakota County Agricultural Society Board subject to Minnesota Statutes, Chapter 13D?September 8, 2011; Dakota County Agricultural Society Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On July 25, 2011, the Information Policy Analysis Division (IPAD), received a letter dated July 11, 2011, from Cathy Busho. In her letter, Ms. Busho asked the Commissioner to issue an advisory opinion as to whether the Dakota County Agricultural Society Board is subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.</p> <p>IPAD, on behalf of the Commissioner, wrote to Don Storlie, President of the Board, in response to Ms. Busho's request. The purposes of this letter, dated July 27, 2011, were to inform him of Ms. Busho's request and to ask him to provide information or support for the Board's position. On August 16, 2011, IPAD received a response, dated same, from Mr. Storlie.</p> <p>A summary of the facts as Ms. Busho provided them is as follows. In her opinion request, she listed several instances in Minnesota law that reference the Agricultural Society and link it to having a public purpose or connection, such as being the recipient of public monies:</p> <p class="opinion_quote">The [Agricultural Society] was found [sic] in 1858 and incorporated in 1918 as a perpetual non-profit corporation pursuant to now [Minnesota Statutes, Chapter 38]. The primary task is to operate the Dakota County Fair. The membership in the corporation is open to any adult who resides in Dakota County. The members of the [Agricultural Society] elect a Board of Directors at its annual meeting .</p> <p class="opinion_quote">The Dakota County Board of Commissioners has authority under [Minnesota Statutes, section 375.18, subds. 8 and 9] to appropriate money to help agricultural societies with land and lease of land. </p> <p class="opinion_quote">The [Agricultural Society] has [statutory authority] to receive support services from Dakota County. [Minnesota Statutes, section 383D.49.]</p> <p class="opinion_quote">The [Agricultural Society] is listed as a Governmental Subdivision in [Minnesota Statutes, section 353.01, subdivisions 2a(5) and 6(b) - certain full-time employees of the Agricultural Society are members of the Public Employees Retirement Association.] </p> <p class="opinion_quote">The [Agricultural Society] receives a distribution of aid from State of Minnesota as payment for Fair Premiums paid for exhibits shown at the county fair. [Minnesota Statutes, section 38.02.]</p> <p>Ms. Busho also noted that in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267940" title="10-004" target="_blank">Advisory Opinion 10-004</a>, the Commissioner opined that the Agricultural Society is subject to Minnesota Statutes, Chapter 13, government data practices:</p> <p class="opinion_quote">[p]ursuant to section 13.02, subdivision 11, a political subdivision includes an entity created pursuant to law. Minnesota Statutes, Chapter 38, contains the enabling legislation that grants county agricultural societies their powers and responsibilities. Thus, county agricultural societies are political subdivisions as that term is defined in Chapter 13.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Busho's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Is the Dakota County Agricultural Society Board subject to Minnesota Statutes, Chapter 13D?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Most public bodies are subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.</p> <p>The Minnesota Supreme Court continually recognizes the law's importance. In Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002), the court wrote:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinionquoteinquote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences; (2) to assure the public's right to be informed and (3) to afford the public an opportunity to present its views to the [public body].</p> <p class="opinion_quote">St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 4 (Minn. 1983) (citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. [footnote omitted]</p> <p>Minnesota Statutes, section 13D.01, subdivision 1, states:</p> <p class="opinion_quote">All meetings, including executive session, must be open to the public</p> <p class="opinion_quote">(b) of the governing body of a</p> <p class="opinion_quote">(1) school district however organized, <br /> (2) unorganized territory, <br /> (3) county, <br /> (4) statutory or home rule charter city, <br /> (5) town, or <br /> (6) other public body  <br /></p> <p>In his comments to the Commissioner, Mr. Storlie wrote:</p> <p class="opinion_quote">In response to your letter, we are abiding by the open meeting laws. We were questioned about the open meeting laws back about 3 years ago and we did have an opinion written by our attorney at that time so we are quite sure we are doing it according to the law.</p> <p>Given that the Agricultural Society is subject to the requirements of Minnesota Statutes, Chapter 13, receives public monies, and has authority (eminent domain power - Minnesota Statutes, section 38.05 and tax levy power through the county - Minnesota Statutes, section 38.27) similar to that of the public bodies specifically referenced in Minnesota Statutes, section 13D.01, subdivision 1, the Commissioner concludes that the Board is an other public body and, as such, is subject to Chapter 13D.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Busho raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Dakota County Agricultural Society Board is subject to Minnesota Statutes, Chapter 13D.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: September 8, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2671092665722022-04-25T16:16:47Z266258266367266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267293" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-29T15:19:43ZMay the City of Saint Paul classify architectural plans and other documents related to the construction of a particular building as not public “security information” pursuant to Minnesota Statutes, section 13.37, subdivision 1(a)?June 29, 2011; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On February 22, 2011, the Information Policy Analysis Division (IPAD) received a letter dated February 18, 2011, from Rachel Tierney, Assistant Saint Paul City Attorney. In her letter, Ms. Tierney asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD asked for clarification, which Ms. Tierney provided in letters dated April 8 and May 23, 2011.</p> <p>A summary of the facts follows. Ms. Tierney, who represents the City's Department of Safety and Inspections (SPDS), stated that the City maintains building permit applications, architectural plans, and other documentation related to the construction of a health care center, administrative headquarters and parking ramp from Planned Parenthood of Minnesota, North Dakota, South Dakota (PPMNS and PPMNS project). The City received a request for copies of the architectural plans for the project, and subsequently received ;a request from PPMNS to treat the architectural plans and all related documentation as nonpublic under Minn. Stat. section 13.37, subd. 1(a).</p> <p>The City asked PPMNS for additional information necessary to evaluate its request that the City classify the data under Minnesota Statutes, section 13.37. Ms. Tierney stated that based upon the information PPMNS provided, the City believes it is appropriate to classify the data under section 13.37, subdivision 1 (a). Ms. Tierney provided copies of the information submitted to the City by Susan A. Casey, attorney and Chief Compliance Officer for PPMNS.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Tierney's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>May the City of Saint Paul classify architectural plans and other documents related to the construction of a particular building as not public "security information" pursuant to Minnesota Statutes, section 13.37, subdivision 1(a)?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.37, subdivision 1 (a), in relevant part, 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."</p> <p>(Section 13.37, subdivision 2, classifies security information as not public.)</p> <p>In her comments to the City, Ms. Casey wrote that PPMNS submitted approximately 1,200 pages of plans:</p> <p class="opinion_quote"><em>Every single drawing and the covers of each of the two specification books contain the identity and contact information for the entire design and construction team; select other documents contain the identity of various suppliers, manufacturers and vendors associated with the project.</em></p> <p class="opinion_quote"><em>In addition, the plans contain descriptions of infrastructure including the location of security cameras; types of security equipment and materials used; entrances and exits to secured areas; the location and type of communications and utility networks; and the location of surgical suites where our most vulnerable patients and the physicians who serve them could be attacked by anyone who - as a result of viewing the plans - breached the security systems [.]</em></p> <p class="opinion_quote"><em>All plans submitted as part of the building permit process have been copyrighted in accordance with the copyright law of the United States (Title 17, USC). Accordingly, these plans cannot be photocopied or otherwise reproduced. We believe, however, that mere inspection of these documents poses a threat to the immediate safety of individuals involved in the construction of the building as well as to our employees and the patients we serve. Moreover, information contained in the plans increases the likelihood of trespass, tampering, and destruction of property.</em></p> <p class="opinion_quote"><em>PPMNS and other Planned Parenthood affiliates around the country are the targets of picketing, harassment, intimidation, vandalism, and physical violence from a variety of individuals and organizations opposed to the reproductive health services we provide. [Ms. Casey included a document, "</em>Exhibit A<em>," which] is a listing of security incidents that occurred at PPMNS clinics since 1976, when PPMNS opened its Highland Park [Saint Paul] clinic and headquarters. These incidents range from picketing and similar organized disruption of patient care to arson, bomb attacks, shootings, and physical assault of our CEO in his office.</em></p> <p>Ms. Casey further stated that the identity of contractors, subcontractors, vendors, suppliers and manufacturers should also be protected under section 13.37, because:</p> <p class="opinion_quote"><em>Groups opposed to the construction of the PPMNS building have identified several of these companies and have already begun a campaign of boycott and threatened harm. These groups are monitoring the construction site and posting videos showing various vendors associated with the project.</em></p> <p class="opinion_quote"><em>In addition to simple boycott, several vendors identified by the... cameras have received threatening letters and email, and at least one of them received a suspicious package on January 13, 2011.</em></p> <p>In addition, Ms. Casey stated that many of the subcontractors have taken steps to protect their identities (e.g., using unidentified equipment) because "several of the companies that were first on the site" were subject to harassment. (The general contractor is required by local code to post its name and contact information.)</p> <p>Ms. Casey further wrote:</p> <p class="opinion_quote"><em>The plans at issue include information regarding every aspect of the building's infrastructure, including security systems, safety features, utilities and emergency power sources, and floor plans. These documents are so detailed as to include the type and location of security cameras; entrances and exits to secured areas; types of equipment used for panic calls and to trigger lock-down; identification of which windows are bullet-proof and which are merely shatterproof; and the location of consultation, procedure, and related patient-care rooms. Disclosure of any subset of the infrastructure specifications would negate the careful and calculated planning designed to protect patients and staff from harm; disclosure of the entire set of plans would expose the building to violation and put its occupants in harm's way.</em></p> <p class="opinion_quote"><em>[Ms. Casey also included a document, "</em>Exhibit B<em>," which] is a report compiled by the Security Department at Planned Parenthood Federation of America of significant security threats occurring at Planned Parenthood affiliates throughout the country over the past year. These incidents, as well as those identified in Exhibit A, demonstrate the enmity that many individuals and organizations harbor against Planned Parenthood and the extent to which they will go to disrupt our services, even when it involves violence. The most egregious example, of course, were the slayings of eight people - four physicians, two clinic employees, a security guard and a clinic escort - since 1993.</em></p> <p>The Commissioner has issued numerous advisory opinions on issues related to classifying data as security information under Minnesota Statutes, section 13.37, subdivision 1(a). In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267835" title="02-014" target="_blank">Advisory Opinion 02-014</a>:</p> <p class="opinion_quote"><em>The Commissioner has previously opined that section 13.37, subdivisions 1(a) and 2, may not be employed as a blanket classification scheme, but instead applies to otherwise public data in those specific situations in which an entity has reason to believe that the disclosure would be likely to substantially jeopardize the security of information, possessions, individuals or property. (See, for example, Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267047" title="98-046" target="_blank">98-046</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267810" title="01-029" target="_blank">01-029</a>.)</em></p> <p class="opinion_quote"><em>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.</em></p> <p>The Commissioner agrees with Ms. Tierney, that PPMNS has presented sufficient detailed information and reasoned analysis for the City to determine that, given the particular circumstances of the PPMNS building project, the data in question are properly classified as not public security information, pursuant to Minnesota Statutes, section 13.37, subdivision 1 (a).</p> <p>Ms. Tierney further stated:</p> <p class="opinion_quote"><em>If the information identified by PPMNS is security information', then the building plans in their entirety also meet that definition. I have personally reviewed the requested building plans with St. Paul's Building Official. Literally every page of these plans contains information that raises an identifiable security concern. The documents are not text, they are pictures. As such, redaction would be meaningless because the location of what had been redacted would be obvious. Under these circumstances, the documents meet the test outlined in</em> Northwest Publications, Inc. v. City of Bloomington<em>, 499 N.W.2d 509 (Minn. App. 1993) and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267622" title="04-014" target="_blank">Advisory Opinion 04-014</a> because the public and nonpublic information is so inextricably intertwined that segregation of the material would leave the remaining part of the document with little informational value.</em></p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267622" title="04-014" target="_blank">Advisory Opinion 04-014</a>, the Commissioner discussed <em>Northwest Publications</em>:</p> <p class="opinion_quote">In Northwest Publications, Inc. v. City of Bloomington, the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267649" title="03-018" target="_blank">03-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267878" title="03-001" target="_blank">03-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267448" title="00-065" target="_blank">00-065</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267552" title="96-002" target="_blank">96-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267854" title="94-034" target="_blank">94-034</a>.)</p> <p class="opinion_quote">Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, Inc., maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately.</p> <p>Given the information provided to the Commissioner, it is reasonable for the City to take the position here that the data in question are inextricably intertwined and may be withheld from the public in their entirety.</p> <p>The Commissioner notes that Ms. Tierney stated the City's request does not include the architectural renderings associated with the PPMNS project, except to the extent they identify contractors whose identities warrant protection.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Tierney raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Saint Paul may classify, in their entirety, architectural plans and other documents related to the construction of the PPMNS building as not public security information, pursuant to Minnesota Statutes, section 13.37, subdivision 1(a).</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 29, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2672932664542022-01-18T19:26:04Z266258514332266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267162" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-27T15:18:43ZDid the City of Red Wing comply with Minnesota Statutes, Chapter 13, in its redaction of certain data in the appraisal of Minnesota National Golf Links?June 27, 2011; City of Red Wing36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On May 9, 2011, the Information Policy Analysis Division (IPAD) received a letter dated same, from Kent Laugen. In his letter, Mr. Laugen asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Red Wing.</p> <p>IPAD, on behalf of the Commissioner, wrote to Kay Kuhlmann, Council Administrator, in response to Mr. Laugen's request. The purposes of this letter, dated May 16, 2011, were to inform her of Mr. Laugen's request and to ask her to provide information or support for the City's position. In a May 17, 2011, email, Ms. Kuhlmann, advised IPAD that Kathy Johnson, City Clerk, is the Responsible Party.; On June 1, 2011, IPAD received a response, dated same, from Eric Quiring, an attorney representing the City.</p> <p>A summary of the facts as Mr. Laugen provided them is as follows. He wrote in the opinion request:</p> <p class="opinion_quote">The City of Red Wing is contemplating the sale of its municipal golf course, Mississippi National Golf Links (MNGL). MNGL is leased by the City to Wendell Pittenger as Lessee. The contemplated sale involves revenue bonds held by Associated Bank for which the Lessee, Wendell Pittenger, is obligated. To date, no formal decision by the City has been made to sell the property.</p> <p class="opinion_quote">In 1998, a decision was made to expand MNCL which involved the use of revenue bonds. The bonds were sold to Associated Bank. The lease between the City and Pittenger was amended to require that Pittenger, as part of his rent, would be obligated to pay the monthly bond payments as they came due.</p> <p class="opinion_quote">The bonds owed to Associated Bank have come due, and the Red Wing City Council has twice negotiated an extension of the due date. It is my understanding that under the terms of the lease, the Lessee is obligated to pay the bonds.</p> <p class="opinion_quote">Several months ago an appraisal of MNGL was ordered by Associated Bank, as the client, for financing purposes, and was completed by James Norby on October 11, 2010. The City and Lessee agreed to share in the cost of the MNGL [appraisal].</p> <p>Mr. Laugen discussed that the City publicly released the appraisal after making redactions pursuant to Minnesota Statutes, section 13.44, subdivision 3(a). Mr. Laugen disagrees with the City's redactions.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Laugen's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did the City of Red Wing comply with Minnesota Statutes, Chapter 13, in its redaction of certain data in the appraisal of Minnesota National Golf Links?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.44, subdivision 3(a), classifies estimated or appraised values of individual parcels of real property that are made by personnel of a government entity or by independent appraisers acting for a government entity for the purpose of selling or acquiring land through purchase or condemnation as confidential (data on individuals) or protected nonpublic (data not on individuals).</p> <p>Subdivision 3(c) of Minnesota Statutes, section 13.44, provides that the data protected above become public upon the occurrence of any of the following:</p> <p class="opinion_quote">(1) the data are submitted to a court-appointed condemnation commissioner;</p> <p class="opinion_quote">(2) the data are presented in court in condemnation proceedings; or</p> <p class="opinion_quote">(3) the negotiating parties enter into an agreement for the purchase and sale of the property.</p> <p>In his opinion request, Mr. Laugen argues for two reasons that Minnesota Statutes, section 13.44, does not apply. First is because the appraisal was not prepared by the City or on behalf of the City, but rather for the benefit of Associated Bank. He notes that the September 14, 2010, engagement letter to the appraiser from Associated Bank states, The intended user/client is Associated Bank. Secondly, Mr. Laugen asserts that the appraisal was not conducted for the purpose of selling or acquiring land, but for the purpose of evaluating financing options.</p> <p>Mr. Laugen added that, for purposes of argument, if the appraisal was prepared on behalf of the City, all of the redacted data would be public, except for the final amount.</p> <p>In his comments to the Commissioner, Mr. Quiring wrote:</p> <p class="opinion_quote">Despite the fact that the City and Lessee jointly sought (and paid for) the appraisal, Mr. Laugen asserts that the appraisal was not prepared on the City's behalf. Mr. Laugen asserts that the appraisal was ordered by Associated Bank solely for financing purposes related to outstanding revenue bonds. While it may be true that Associated Bank utilized the appraisal report for its own financing purposes, that does not alter the fact that the City contracted for the appraisal of the property for the purpose of determining the property's value for sale. As part of its budget for the past couple of years, the City has been considering cost-cutting and revenue-producing measures, including the potential sale of [the golf course]. The appraisal of the property was undertaken in furtherance of that purpose. Associated Bank's use of the appraisal report for its own purposes does not prevent the City from commissioning the appraisal for purposes of selling the property. Because the appraisal was made for the City for the purpose of selling land, the appraised values are protected nonpublic data.</p> <p class="opinion_quote">Mr. Laugen also appears to assert that all of the data in the appraisal report should be public because it has been exchanged among the City, the Lessee, and Associated Bank. There is no such exception in [Minnesota Statutes, section 13.44, subdivision 3]. ...</p> <p class="opinion_quote">Notwithstanding the City's release of the total appraisal value of the property in order to allow the public to more fully participate in the consideration of the City's potential sale of [the golf course], the remaining redacted data in the appraisal report is classified as nonpublic pursuant to Minnesota Statutes Section 13.44, subd. 3(a). The redacted data consists solely of appraised values and the calculations used to arrive at the appraised values.</p> <p>Mr. Laugen states that the appraisal was obtained for Associated Bank for the purpose of evaluating financing options. Mr. Quiring states that the City and Lessee jointly obtained the appraisal to assist in determining an appropriate value for purposes of selling the golf course. This is a factual dispute the Commissioner cannot resolve.</p> <p>If the appraisal was obtained so that Associated Bank could evaluate financing options, the data in the appraisal are not classified pursuant to Minnesota Statutes, section 13.44, subdivision 1, and therefore, are public pursuant to the general presumption in Chapter 13. (Section 13.03, subdivision 1.)</p> <p>If, however, the City obtained the appraisal for the purpose of selling the golf course, Minnesota Statutes, section 13.44, subdivision 3, does apply and the City must publicly release all data in the appraisal except for the estimated or appraised values of the property. (Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267259" title="04-005" target="_blank">04-005</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266508" title="10-010" target="_blank">10-010</a>.) (The City can withhold the values because apparently none of the events in Section 13.44, subdivision 3(c), have occurred.) The Commissioner has not seen an unredacted copy of the appraisal and therefore, cannot determine whether the City redacted appropriately.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Laugen raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The Commissioner cannot determine whether the City of Red Wing complied with Minnesota Statutes, Chapter 13, in its redaction of certain data in the appraisal of Minnesota National Golf Links.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 27, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2671622665072022-01-18T19:26:04Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267997" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-20T15:17:43Z Did Special School District 1, Minneapolis, comply with Minnesota Statutes, Chapter 13, in its response to a request for “the position study report of Dr. Schiller,” and the “compensation study report of Public Sector Personnel Consultants, Inc. (PSPC)”?June 20, 2011; Special School District 1 (Minneapolis)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On May 5, 2011, the Information Policy Analysis Division (IPAD) received an email from Cassandra K. Ward Brown. In her letter, Ms. Ward Brown asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data Special School District 1, Minneapolis maintains. On May 6, 2011, Ms. Ward Brown supplemented her request with additional information regarding the District's response to her data request.</p> <p>IPAD, on behalf of the Commissioner, wrote to Bernadeia Johnson, District Superintendent, in response to Ms. Ward Brown's request. The purposes of this letter, dated May 16, 2011, were to inform her of Ms. Ward Brown's request and to ask her to provide information or support for the District's position. Dan Loewenson, Chief of Staff for the District, responded, in a letter dated June 9, 2011.</p> <p>A summary of the facts follows. According to Ms. Ward Brown, beginning in at least October, 2010, she asked the District for access to a compensation study conducted by a consultant for the District. In her May 6, 2011, email, Ms. Ward Brown wrote:</p> <p class="opinion_quote">[T]oday Mr. Loewenson provided me with a Power Pointreferencing the PSPC Report, a memo about the District's Compensation Philosophy, two handouts regarding the District's proposed salary plan and Schematic of Occupational Job Classes. I have not been provided a copy of the PSPC Report.</p> <p>In December 2010, she also asked for a copy of the Schiller report, which analyzes employment positions in the District. Ms. Ward Brown stated to the Commissioner:</p> <p class="opinion_quote">.... This [sic] District subsequently provided me with a redacted copy of the Schiller report. The report is visibly redacted. Page 76 has a sentence that ends in the middle, and the remainder of the page is blank. Other locations in the report has [sic] text that does not follow logically. Dan Leowenson [sic] claims that only the Appendix was removed for convenience. However, the District General Counsel stated, without prompting, in a staff meeting that the Schiller Report has indeed been redacted, because it [sic] the redacted information might cause embarrassment to or upset the departments or individuals discussed.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Ward-Brown's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did Special School District 1, Minneapolis, comply with Minnesota Statutes, Chapter 13, in its response to a request for the position study report of Dr. Schiller,euro;#157; and the compensation study report of Public Sector Personnel Consultants, Inc. (PSPC)?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Upon request for access to public government data, a government entity must provide the requested data, or cite the specific statutory basis on which it denies access. (Section 13.03, subdivision 3.)</p> <p>In his comments to the Commissioner, Mr. Loewenson wrote:</p> <p class="opinion_quote">A copy of the final position study report that Dr. Schiller's [sic] wrote for the District was given to Ms. Brown on April 1, 2011. The District did not redact Dr. Schiller's final report. Dr. Schiller was editing the report prior to giving the District the final report. The District asserts that the author editing a draft report prior to submitting a final report to the District does not constitute redaction within the meaning of the MGDPA.</p> <p class="opinion_quote">A copy of the final compensation study report prepared for the District by PSPC was given to Ms. Brown on May 6, 2011. The District did not redact PSPC's final report.</p> <p class="opinion_quote">The District furnished Ms. Brown with parts of the report as they became finalized prior to giving her a copy of the complete final report on May 6, 2011. The District asserts that giving the requestor portions of a report that become available prior to the entire report being finalized does not constitute redaction within the meaning of the MGDPA. The District gave Ms. Brown portions of the report prior to the report being finalized in order to comply with the spirit of the MGDPA and in an attempt to respond to her data practices request promptly.</p> <p>Ms. Ward Brown stated that the District did not provide her with a copy of the PSPC report; the District states that it did. Ms. Ward Brown gave examples for the basis of her claim that the District gave her a redacted copy of the Schiller report, and stated that the District's general counsel stated that the report was redacted. Apparently, according to Mr. Loewenson, the District provided Ms. Ward Brown with portions of the reports in draft versions; he stated that does not mean the District redacted any data.</p> <p>The Commissioner is unable to resolve factual disputes. If the District has redacted any data from either report, it must cite the specific statutory basis for doing so. Otherwise, Ms. Ward Brown has repeatedly asked for copies of the final reports. If the District has provided her with copies of draft versions of any portion of the reports, it should promptly provide Ms. Ward Brown with final copies.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Ward-Brown raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The Commissioner cannot determine whether Special School District 1, Minneapolis, complied with Minnesota Statutes, Chapter 13, in its response to a request for the position study report of Dr. Schiller, and the compensation study report of Public Sector Personnel Consultants, Inc. (PSPC), because the parties disagree as to whether the District redacted any data from either report.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 20, 2011</p> <hr /> </td> </tr> </tbody> </table> </div>2679972022-08-29T18:46:01Z266258514332266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267303" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-17T15:16:43ZDid Castle Rock Township comply with Minnesota Statutes, Chapter 13, if it released X’s identity after X registered a complaint concerning a violation of state laws or local ordinances relating to real property? June 17, 2011; Castle Rock Township36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On May 2, 2011, the Information Policy Analysis Division (IPAD), received a letter dated April 8, 2011, from an individual, X. In the letter, X asked the Commissioner to issue an advisory opinion as to whether Castle Rock Township violated certain rights afforded him/her under Minnesota Statutes, Chapter 13.</p> <p>IPAD, on behalf of the Commissioner, wrote to Jane Bistodeau, Township Clerk, in response to X's request. The purposes of this letter, dated May 3, 2011, were to inform her of X's request and to ask her to provide information or support for the Township's position. On May 20, 2011, IPAD received a response, dated May 18, 2011, from Robert Bauer, an attorney representing the Township.</p> <p>A summary of the facts as X provided them is as follows. In his/her opinion request, X wrote:</p> <p class="opinion_quote">[I am requesting an opinion] with regards to whether the [Township] did make public my identity on numerous occasions with regards to a real property issue, noise nuisance complaint, I made against the Dakota County Fairgrounds on September 15, 2009 concerning numerous rock concerts/rodeos held at the property since August 2006.</p> <p class="opinion_quote">[t]he [Township Board] decided to send my complaint to the Joint Farmington/Castle Rock Township Discussion Group for a decision on how to enforce these complaints . Without my knowledge, at the October 13, 2009 Regular Meeting of the [Township Board] they discussed my complaint making it and my identity public information at this public meeting. </p> <p>X provided to the Commissioner a copy of the complaint s/he filled out. The form is entitled, Castle Rock Township, Minnesota Zoning Ordinance Violation Complaint Form. On the form, in the Nature of Violation section, X wrote, Noise, 7.12, 7.12E, #3. In another document, X made reference to these being some type of nuisance laws/ordinances.</p> <p>X also provided to the Commissioner a copy of the October 13, 2009, Township Board meeting minutes. The minutes state,[ X's name] - the Board directed the Clerk to write a letter that [his/her] complaint letter was received and will be addressed at the next Castle Rock Township and City of Farmington meeting November 19, 2009 and invite [him/her] to attend.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on X's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did Castle Rock Township comply with Minnesota Statutes, Chapter 13, if it released X's identity after X registered a complaint concerning a violation of state laws or local ordinances relating to real property?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Pursuant to Minnesota Statutes, section 13.02, subdivision 11, certain metropolitan area townships are subject to Minnesota Statutes, Chapter 13. Mr. Bauer, in his comments to the Commissioner, did not dispute that Castle Rock Township is subject to Chapter 13.</p> <p>Minnesota Statutes, section 13.44, subdivision 1, classifies the following data as confidential: the identities of individuals who register complaints with government entities concerning violations of state laws or local ordinances concerning the use of real property.</p> <p>In his comments to the Commissioner, Mr. Bauer wrote:</p> <p class="opinion_quote">In this matter, the complaint made by X does not relate to the enforcement of any Castle Rock zoning ordinance. Instead, X has made complaints concerning the activities at the Dakota County Fairgrounds The Township does not have jurisdiction over the activities conducted by Dakota County and its Fairgrounds. </p> <p class="opinion_quote">When X provided [his/her] complaint on September 15, 2009, [X] acknowledged that the purported violations relate to permit violations, presumably issued in connection with the large assembly permit. The response by the Township Clerk invited X to participate in a group discussion between the Township, the City of Farmington and representatives of Dakota County concerning events that occur at the Fairgrounds.</p> <p>The issue of whether a government entity has jurisdiction over a particular state law or local ordinance concerning the use of real property is not one over which the Commissioner has authority. Furthermore, it is not addressed in Chapter 13. Chapter 13, though, does provide that when an individual makes the type of complaint described in Minnesota Statutes, section 13.44, subdivision 1, his/her identity is confidential. Thus, when an entity receives the type of complaint X made to the Township, the entity must protect the individual's identity and cannot release it to the public.</p> <p>In the situation before the Commissioner, the Township released X's identity in a public meeting. Minnesota Statutes, section 13.03, subdivision 11, states, Not public data may be discussed at a meeting open to the public to the extent provided in section 13D.05. Minnesota Statutes, section 13D.05, subdivision 1(b), provides that public bodies are protected from liability if they discuss not public data at a public meeting if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body. Mr. Bauer did not comment on whether releasing X's identity related to a matter within the scope of the Township Board and was reasonably necessary to conduct the business or agenda item before the Board. If so, the Board could have released X's identity. If not, the Board should not have disclosed X's identity.</p> <p>Finally, Mr. Bauer noted that X had written to Township Board members regarding his complaints about noise. Mr. Bauer provided a copy of one such letter and asserted that X's identity was public because X complained about the noise issues in correspondence with Board members and elected officials can make correspondence public (Minnesota Statutes, section 13.601, subdivision 2).</p> <p>The Commissioner respectfully disagrees with Mr. Bauer's argument. Minnesota Statutes, section 645.26, discusses interpreting statutory provisions that are irreconcilable. Section 645.26, subdivision 4, states:</p> <p class="opinion_quote">When the provisions of two or more laws passed at different sessions of the legislature are irreconcilable, the law latest in date of final enactment shall prevail.</p> <p>Minnesota Statutes, section 13.44, subdivision 1, which classifies the identity of a complainant as confidential, was enacted in 1980. Minnesota Statutes, section 13.601, subdivision 2, which provides that elected officials can make public correspondence from individuals, was enacted in 1979. Thus, as the later-enacted provision, section 13.44 prevails; the Township's elected officials cannot rely on section 13.601 to make X's identity public.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue X raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, sections 13.03, subdivision 11, and 13D.05, subdivision 1(b), Castle Rock Township could not have released X's identity in an October 13, 2009, Board meeting unless the disclosure was related to a matter within the scope of the public body's authority and was reasonably necessary to conduct the business or agenda item before the Board.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 17, 2011</p> <hr /> </td> </tr> </tbody> </table> </div>2673032664662022-01-18T19:26:02Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267979" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-08T15:15:43ZIf a data requestor, who is not the subject of the data, provides DNR with data about the individual registration owner that are private pursuant to Minnesota Statutes, section 84.0874, in this case name, address, and date of birth, is DNR in compliance with Minnesota Statutes, Chapter 13, if it releases public registration data about that individual without a court order or informed consent?June 8, 2011; Minnesota Department of Natural Resources36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On April 22, 2011, the Information Policy Analysis Division (IPAD) received a letter dated same, from Sheila Deyo, on behalf of Tom Landwehr, Commissioner of the Minnesota Department of Natural Resources (DNR). In her letter, Ms. Deyo asked the Commissioner (of Administration) to issue an advisory opinion regarding the classification of certain electronic licensing data (ELS) data the DNR maintains.</p> <p>A summary of the facts as Ms. Deyo provided them is as follows. In her opinion request, Ms. Deyo wrote:</p> <p class="opinion_quote">Electronic licensing system records include personal information about the individual applying for a license or registration of a recreational vehicle. The personal information includes name, address, date of birth, and driver's license number, which are classified as private data. [Minnesota Statutes, section 84.0874.] Additional information is also created or provided as a part of the registration or license record for example a registration number for a boat, snowmobile or OHV [off high-way vehicle]; the type, size and length of the recreational vehicle; a serial number; notice of liens; etc. The record is a mix of private data about an individual(s) and public data about the license or registration. Note that a record can contain private data about more than one individual. For example: a husband-and-wife combination fishing license or a boat that is registered with multiple owners.</p> <p class="opinion_quote">When an individual registers a recreational vehicle with the DNR, some of the data provided is classified as private data and some of the data is classified as public data. DNR often receives requests for both the private and public registration data.</p> <p>Ms. Deyo attached an example of a request DNR received for registration data. She wrote,The private data about the registration owner has been provided by the requester, who is not the data subject.</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Deyo's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">If a data requestor, who is not the subject of the data, provides DNR with data about the individual registration owner that are private pursuant to Minnesota Statutes, section 84.0874, in this case name, address, and date of birth, is DNR in compliance with Minnesota Statutes, Chapter 13, if it releases public registration data about that individual without a court order or informed consent?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 84.0874, classifies some of DNR's electronic licensing system data as not public:</p> <p class="opinion_quote">The following data created, collected, stored, or maintained by the department for purposes of obtaining a noncommercial game and fish license, cross-country ski pass, horse trail pass, or snowmobile trail sticker; registering a recreational motor vehicle; or any other electronic licensing transaction are private data on individuals as defined in section 13.02, subdivision 12: name, addresses, driver's license number, and date of birth. The data may be disclosed for law enforcement purposes. The data, other than the driver's license number, may be disclosed to a government entity and for natural resources management purposes, including recruitment, retention, and training certification and verification.</p> <p>Private data are accessible to the data subject and not to the public. (Minnesota Statutes, section 13.02, subdivision 12.) Private data can be disclosed outside the originating government entity if there is statutory authority to do so or if the data subject has given written informed consent. (Minnesota Statutes, section 13.05, subdivisions 3 and 4.)</p> <p>In the sample data request Ms. Deyo submitted to the Commissioner, the requestor provided DNR with identifying data about an individual (data that are private pursuant to Minnesota Statutes, section 84.0874) and asked DNR to provide him with registration data related to that individual.</p> <p>Although the registration data the requestor seeks - registration number for a boat, snowmobile or OHV; the type, size and length of the recreational vehicle; a serial number; notice of liens; etcetera - are public when not linked to an individual, once they are connected to an individual, pursuant to Minnesota Statutes, section 84.0874, the registration data cannot be released.</p> <p>In other words, the effect of Minnesota Statutes, section 84.0874, is that DNR cannot release registration data that are linked to identifying information about the individual registrant, unless the registrant has given his/her informed consent or there is statutory authority permitting the disclosure.</p> <p>DNR can release de-identified or summary data upon request. (Minnesota Statutes, sections 13.02, subdivision 19; 13.05, subdivision 7; and Minnesota Rules, Parts 1205.0200, subpart 16, and 1205.0700.)</p> <p>Finally, the Commissioner's understanding is that sometimes a business, rather than an individual registers for a recreational vehicle. Data about businesses are <em>data not on individuals</em> and are not classified by Minnesota Statutes, section 84.0874. Therefore, registration data connected to a business are public pursuant to the public presumption in Minnesota Statutes, section 13.01, subdivision 3.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Deyo raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">If a data requestor, who is not the subject of the data s/he requests, provides DNR with data about an individual registration owner that are private pursuant to Minnesota Statutes, section 84.0874, in this case name, address, and date of birth, DNR would not be in compliance with Minnesota Statutes, Chapter 13, if it releases registration data about that individual without a court order or informed consent.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 8, 2011</p> <hr /> </td> </tr> </tbody> </table> </div>2679792663932025-12-09T16:29:26Z266258266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266661" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-06-08T15:14:43ZIs the email sent to an elected official from a member of the public “government data” under Minnesota Statutes, Chapter 13? If the email is not “government data,” can it be classified as “data on individuals?” If the email is “government data,” is it classified as private data on the individual who sent the email? If the email is government data and classified as private data on the sender of the email, does the individual who is the subject of the email (the finalist for the superintendent position), have a right to inspect or copy the email upon request and, if so, must the name or other personally identifiable information of the sender be redacted from the email?June 8, 2011; School District 834 (Stillwater)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On April 25, 2011, the Information Policy Analysis Division (IPAD) received a letter dated April 21, 2011, from Maggie Wallner, on behalf of Independent School District 834, Stillwater. In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains.</p> <p>A summary of the facts as Ms. Wallner provided them is as follows. In her opinion request, Ms. Wallner wrote:</p> <p class="opinion_quote">[t]he School Board conducted a search for a new superintendent. In mid-March, the Board released the names of the finalists. Shortly thereafter, the School Board Chair received an email from a member of the general public which contained information regarding his/her perception of the performance and conduct of one of the finalists while employed by another school district. The Board Chair did not disclose the email to any other board member, nor did he share it with School District administrators or employees. The finalist was not offered the superintendent position. Shortly thereafter, he requested a copy of the email as public data. Neither the Board Chair or [sic] sender of the email wish to release the email.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Is the email sent to an elected official from a member of the public "government data" under Minnesota Statutes, Chapter 13?</li> <li>If the email is not "government data," can it be classified as "data on individuals"?</li> <li>If the email is "government data," is it classified as private data on the individual who sent the email?</li> <li>If the email is government data and classified as private data on the sender of the email, does the individual who is the subject of the email (the finalist for the superintendent position), have a right to inspect or copy the email upon request and, if so, must the name or other personally identifiable information of the sender be redacted from the email?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <h2>Issue 1</h2> <p><em>Is the email sent to an elected official from a member of the public "government data" under Minnesota Statutes, Chapter 13?</em></p> <p>Minnesota Statutes, section 13.02, subdivision 7, defines government data as "all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use."</p> <p>Here, the individual receiving the email in question is the chair of the governing body of a school district. The email was sent to him in his capacity as board chair. Therefore, the email is government data.</p> <h2>Issue 2</h2> <p><em>If the email is not "government data" can it be classified as "data on individuals?";</em></p> <p>See Issue 1; the email is government data.</p> <h2>Issue 3</h2> <p><em>If the email is "government data" is it classified as private data on the individual who sent the email?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.601, subdivision 2, classifies correspondence between individuals and elected officials as private data but also provides that the correspondence may be made public by either the sender or the recipient.</p> <p>Generally, when the term "data" is discussed in Minnesota Statutes, Chapter 13, it refers to data elements that make up documents, emails, reports, videotapes, etcetera. Thus, generally, it certainly is possible that a document could be comprised of data about more than one individual, and could contain both public and private data.</p> <p>Minnesota Statutes, section 13.601, subdivision 2, though, specifically classifies as private the correspondence not the data within the correspondence. Section 13.601, subdivision 2, also provides that either the sender or the recipient can make the correspondence public. The Commissioner concludes, therefore, that the Minnesota Legislature intended both the elected official and the sender to be the subject of the correspondence - the only subjects - unless the correspondence is disclosed to a government entity, at which point section 13.601, subdivision 2, no longer applies. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267749" title="08-019" target="_blank">Advisory Opinion 08-019</a>.)</p> <p>Ms. Wallner wrote, "The Board Chair did not disclose the email to any other board member, nor did he share it with School District administrators or employees."</p> <p>Thus, section 13.601, subdivision 2, applies to the correspondence in question and classifies the correspondence as private data about both the individual who sent the email and the elected official to whom the individual sent the email.</p> <h2>Issue 4</h2> <p>If the email is government data and classified as private data on the sender of the email, does the individual who is the subject of the email (the finalist for the superintendent position), have a right to inspect or copy the email upon request and, if so, must the name or other personally identifiable information of the sender be redacted from the email?</p> <p>As discussed in connection with Issue 3, in the situation before the Commissioner, the email sender and the board chair are the subjects of the correspondence; the individual whom the email sender wrote about is not the subject of the correspondence. Therefore, the individual whom the email sender wrote about can get access to the correspondence only if the email sender or the board chair makes it public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Ms. Wallner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The email sent to an elected official from a member of the public is "government data" under Minnesota Statutes, Chapter 13.</li> <li>See Number 1.</li> <li>Pursuant to Minnesota Statutes, section 13.601, subdivision 2, the email is private data on both the individual who sent the email and the elected official to whom the individual sent the email.</li> <li>The individual whom the email sender wrote about is not the subject of the email. S/he can get access only if the email sender or the board chair makes the email public.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: June 8, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2666612662683793082022-01-18T19:26:02Z266258266279266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267395" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-05-26T15:14:43ZDid Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, when it charged $3,900 for copies of government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County? Did Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, in its response to a request for access to government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?May 26, 2011; Johnson Controls, Inc. (ISD 2142-St. Louis County)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History:</h2> <p>On March 28, 2011, the Information Policy Analysis Division (IPAD) received an email from Marshall Helmberger, on behalf of the <em>Timberjay Newspapers</em>. In his email, Mr. Helmberger asked the Commissioner to issue an advisory opinion regarding his right to get access to certain data Johnson Controls, Inc. (JCI), a contractor with Independent School District 2142, St. Louis County, maintains. IPAD asked for additional information, which Mr. Helmberger provided on April 7, 2011.</p> <p>IPAD, on behalf of the Commissioner, wrote to David L. Lillehaug, attorney for JCI, in response to Mr. Helmberger's request. The purposes of this letter, dated April 8, 2011, were to inform Mr. Lillehaug of Mr. Helmberger's request and to ask him to provide information or support for JCI's position. Mr. Lillehaug responded, in a letter dated April 25, 2011.</p> <p>The Commissioner also invited Charles Rick, District Superintendent, to submit comments. Michelle D. Kenney and Stephen M. Knutson, attorneys for the District, responded in a letter dated April 25, 2011.</p> <p>A summary of the facts follows. According to Mr. Helmberger, on January 21, 2011, he asked for data, including the following, from ISD 2142: Annual operational cost projections for waste and storm water treatment facilities and water towers for the north and south schools.</p> <p>Mr. Helmberger wrote that he first asked the District for the data at issue, and Mr. Rick informed me by phone that the district did not have the data. He said he had asked JCI to provide it to me.</p> <p>Mr. Helmberger also asked the District for a copy of the contract with Architectural Resources, Inc. (ARI) as it relates to the school facilities project currently under construction by ISD 2142 under contract with JCI.</p> <p>Mr. Helmberger wrote:</p> <p class="opinion_quote">Mr. Rick notified me by email and in a personal conversation that the district did not have information on the operating costs of the above-noted systems and informed me that he had asked JCI to provide the information.</p> <p class="opinion_quote">In addition, Mr. Rick indicated to me in person that the district does not maintain a copy of the contract and referred the request to JCI.</p> <p>Mr. Helmberger then wrote to JCI and asked for the data. In response, Mr. Lillehaug denied his request,in part, citing JCI's previous claim that they are not subject to the MDPA. In addition, Mr. Lillehaug claims that I owe JCI $3,900 for my previous request for information [which] Mr. Lillehaug is demanding be paid before he will consider any further requests for information. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266851" title="11-001" target="_blank">Advisory Opinion 11-001</a> addressed Mr. Helmberger's previous data request to JCI; the invoice at issue here relates to that request.)</p> <p>In his comments to the Commissioner, Mr. Lillehaug challenged the Commissioner's authority to issue this opinion (see Discussion below), and stated that JCI properly denied Mr. Helmberger's March 4, 2011, data request because he had not paid the $3,900 charge.</p> <p>According to Mr. Lillehaug:</p> <p class="opinion_quote">JCI's unpaid invoice is itself sufficient reason to refuse to spend more time researching or copying documents for Mr. Helmberger. See <em>Salminen v. City of Hibbing</em>, 1989 WL 14922 (Minn. Ct. App. Feb. 28, 1989) (We find that City has no duty to research or copy documents for Salminen until the bill is paid for previous costs incurred by the City).</p> <p class="opinion_quote">On March 18, 2011, JCI advised Mr. Helmberger that his latest request is not so specific that, on its face, it seeks less than 100 pages of documents. JCI notified Mr. Helmberger that it was not prepared to begin any search without a deposit or other tangible commitment that Mr. Helmberger would pay for the actual costs in the event that the search produced more than 100 pages of documents. Mr. Helmberger has failed to make such a commitment to pay.</p> <p>Mr. Lillehaug further stated that the JCI-ARI subcontract contains trade secret information. He wrote:</p> <p class="opinion_quote">Minnesota courts have held that parties can establish certain contract pricing data (e.g., leasing information) as trade secret information under the Act. See <em>EOP-Nicollet Mall, L.L.C. v. County of Hennepin</em>, 2004 WL 1837990 (Minn. Tax Ct. 2004).</p> <p class="opinion_quote">The contract between JCI and ARI contains information on pricing, margin, and profit expectations, including hourly rates charged and the scope of services required by JCI. This is confidential business information. The information derives economic value from this confidentiality, as competitors with this information would find it possible to anticipate the costs and profits expected by JCI on any particular project and use this information to underbid JCI.</p> <p>According to Ms. Kenney and Mr. Knutson:</p> <p class="opinion_quote">The data requested which is the subject of Mr. Helmberger's present advisory opinion request is not maintained by the School District. Mr. Helmberger was so advised by Dr. Charles Rick, Superintendent of Schools, in email correspondence on March 28, 2011. In addition, Dr. Rick informed Mr. Helmberger that his request had been forwarded to Johnson Controls, Inc. (JC). The School District has acted in conformance with <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/266851" title="11-001" target="_blank">Advisory Opinion 11-001</a> dated January 3, 2011.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Helmberger's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, when it charged $3,900 for copies of government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?</li> <li>Did Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, in its response to a request for access to government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Pursuant to Minnesota Statutes, section 13.05, subdivision 11:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements <em>as if it were a government entity</em>. The remedies in section 13.08 apply to the private person under this subdivision. [Emphasis added.]</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>Generally, private organizations, such as JCI, are not subject to the requirements of Minnesota Statutes, Chapter 13. However, they are obligated to comply with Chapter 13 if they enter into a contract with a government entity to perform any of its functions and maintain government data in connection with that contractual relationship.</p> <p>As noted above, Mr. Lillehaug objected to the Commissioner's decision to issue this opinion for a number of reasons.</p> <p>Mr. Lillehaug stated that the Commissioner's authority to issue advisory opinions under Minnesota Statutes, section 13.072, is limited to determinations made by a government entity and does not extend to a private party with which an entity enters into a contract. According to Mr. Lillehaug, because JCI is not a government entity:</p> <p class="opinion_quote">Minn. Stat. section 13.05, subd. 11, (Subdivision 11'), which creates a right to data from certain private contractors, does not bestow jurisdiction on the Commissioner to issue advisory opinions in disputes between a requester and a contractor. To the contrary, Subdivision 11 specifically distinguishes between a government entity and a private person. Further, Subdivision 11 expressly limits the remedies against a private person to those in [Minnesota Statutes] Section 13.08, and makes no mention whatsoever of Section 13.072 or advisory opinions. Accordingly, the Commissioner has no jurisdiction under the Act to issue an advisory opinion in a dispute between a requester and a private entity such as JCI.</p> <p>The Commissioner respectfully disagrees with Mr. Lillehaug. Minnesota Statutes, section 13.072, confers authority for the Commissioner to issue an opinion to a person who disagrees with an entity's data practices determination. JCI is obligated under Minnesota Statutes, section 13.05, subdivision 11, to comply with Chapter 13 as if it were a government entity. Section 13.05, subdivision 11, makes explicit that the Minnesota Statutes, section 13.08, remedies are applicable, but contains no language (e.g., notwithstanding section 13.072) that explicitly excludes section 13.072.</p> <p>Mr. Lillehaug also objected to the Commissioner's decision to issue this opinion because JCI is not performing a government function, a necessary condition for Minnesota Statutes, section 13.05, subdivision 11, to apply. According to Mr. Lillehaug, JCI entered into three contracts with the District in 2008 and 2009, and two additional contracts on February 25, 2010: one to provide professional services on the construction of two new schools and one for professional services for renovations to three existing schools.</p> <p>Pursuant to Minnesota Statutes, section 123B.02, subdivision 2:</p> <p class="opinion_quote">It is the duty <em>and the function of the district</em> to furnish school facilities to every child of school age residing in any part of the district. [Emphasis added.]</p> <p class="opinion_quote">Numerous other statutory provisions address school districts' duties and authority regarding the construction and renovation of public schools. (See, for example, Minnesota Statutes, sections 123B.51, 123B.71, and 123B.72.) Accordingly, JCI is performing a governmental function for the District.</p> <p>In summary, the Commissioner respectfully rejects each of Mr. Lillehaug's objections to his authority to issue this opinion. JCI is a private party subject to the requirements of Minnesota Statutes, section 13.05, subdivision 11, by virtue of its contractual relationship with the District, notwithstanding their failure to include in their contracts the language required by that section.</p> <h2>Issue 1</h2> <p><em>Did Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, when it charged $3,900 for copies of government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?</em></p> <p>When an individual requests copies of more than 100 pages of data of which s/he is not the subject, the government entity may charge its actual reasonable costs to search for and retrieve the data and make the copies, but may not charge its costs to separate public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c), and Minnesota Rules, part 1205.0300.) In addition, pursuant to section 13.03, subdivision 1, entities must maintain government data so that they are easily accessible for convenient use.</p> <p>Mr. Helmberger and Mr. Lillehaug disagree on the facts as to whether all of the data JCI provided to Mr. Helmberger are responsive to his request. The Commissioner cannot resolve that factual disagreement. Accordingly, this discussion is about whether, generally, JCI's $3,900 charge for copies of some 135 pages is allowable under Chapter 13.</p> <p>The Commissioner has addressed appropriate copy charges in numerous opinions. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267812" title="99-039" target="_blank">Advisory Opinion 99-039</a>, the Commissioner opined:</p> <p class="opinion_quote">In situations where a private party is acting as the government entity's agent (in this case via a contract for services) by housing/maintaining government data, the rights of the individual seeking data have not changed. In other words, the requestor has the right to obtain copies of data; also, any fee either the government entity or its agent assesses must fall within the parameters prescribed in Chapter 13.</p> <p class="opinion_quote">Further, the fact that [a private party] maintains [requested] data does not mean that [the requester] should pay unreasonably high charges simply because the data are in the possession of [the private party.]</p> <p>Here, JCI claims that it took 41 hours, charged at hourly rates ranging from $45.00 to $120.00 per hour, to provide Mr. Helmberger with approximately 135 pages of data. Mr. Helmberger noted that the District pays an average hourly clerical wage, including benefits, of $19.00 per hour. Regardless whether each of the 135 pages of data JCI provided Mr. Helmberger is responsive to his request, the Commissioner does not find its copy charge of $3,900 reasonable, and therefore it is not allowable under Chapter 13. JCI must adjust its charges in light of the guidance the Commissioner has provided in previous opinions.</p> <h2>Issue 2</h2> <p><em>Did Johnson Controls, Inc. (JCI) comply with Minnesota Statutes, Chapter 13, in its response to a request for access to government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?</em></p> <p>Mr. Lillehaug characterized the data in the JCI-ARI contract as confidential business information that are protected as trade secret information under Minnesota Statutes, section 13.37, subdivision 1(b), which provides:</p> <p class="opinion_quote">Trade secret information' means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</p> <p>Pursuant to subdivision 2 of section 13.37, trade secret data are classified as nonpublic (data not on individuals) and as private (data on individuals).</p> <p>Mr. Lillehaug also asserted that a Minnesota Tax Court case, <em>EOP-Nicollet Mall, L.L.C. v. County of Hennepin</em>, 2004 WL 1837990 (Minn. Tax Ct. 2004) held that parties can establish certain contract pricing data (e.g., leasing information) as trade secret information under the Act. However, EOP-Nicollet Mall carries no precedential value. (See <em>Kmart Corp. v. County of Stearns</em>, 710 N.W.2d 761, 769 (Minn. 2006).) Thus, it does not control the outcome here.</p> <p>The Commissioner has previously noted that Minnesota Statutes, section 13.37, does not classify proprietary information, and the Legislature set a narrow standard for classification under this provision, which the information Mr. Lillehaug provided does not meet. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267811" title="03-017" target="_blank">03-017</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267648" title="08-018" target="_blank">08-018</a>.) Accordingly, the Commissioner respectfully disagrees that the JCI-ARI contract is trade secret information for purposes of section 13.37. Pursuant to Minnesota Statutes, section 13.03, the contract is public. (See also Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267672" title="03-027" target="_blank">03-027</a>.)</p> <p>Minnesota Statutes, section 13.03, does not contain a provision that allows a government entity (or its contractor) to withhold government data on the basis of an unpaid, disputed copy charge. It is important to note that the Salminen case Mr. Lillehaug cited is unpublished and, pursuant to Minnesota Statutes, section 480A.08, subdivision 3, carries no precedential value. Thus, it does not control the outcome here. Accordingly, if it has not already done so, JCI must provide Mr. Helmberger access to the JCI-ARI contract. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267500" title="03-046" target="_blank">Advisory Opinion 03-046</a>.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Helmberger:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Johnson Controls, Inc. (JCI) did not comply with Minnesota Statutes, Chapter 13, when it charged $3,900 for copies of government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County.</li> <li>Johnson Controls, Inc. (JCI) did not comply with Minnesota Statutes, Chapter 13, in its response to a request for access to government data related to a contract JCI has entered into with Independent School District 2142, St. Louis County.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: May 26, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2673952666042666132022-01-18T19:26:02Z266258266282266283266283266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267788" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-04-08T15:14:43ZDid the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it started a meeting on January 18, 2011, at 3:30 pm when the notice for the meeting stated it would start at 4:15 pm? Did the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it took votes during the January 18, 2011, meeting that started at 3:30 pm when the meeting notice stated it would start at 4:15 pm?April 8, 2011; Olmsted County Regional Authority Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 22, 2011, the Information Policy Analysis Division (IPAD) received a letter dated same, from Kathy King and Orin Johnson, on behalf of the Citizens Against Rochester Bypass (CARB). In their letter, Ms. King and Mr. Johnson asked the Commissioner to issue an advisory opinion regarding whether the Olmsted County Regional Rail Authority (OCRRA) Board complied with Minnesota Statutes, Chapter 13D, the Open Meeting Law. Ms. King and Mr. Johnson submitted the $200 fee required by Minnesota Statutes, section 13.072.</p> <p>IPAD, on behalf of the Commissioner, wrote to Paul Wilson, Vice-Chair of the OCRRA Board, in response to Ms. King and Mr. Johnson's request. The purpose of this letter, dated March 1, 2011, was to inform him of the opinion request and to ask him to provide information or support for the OCRRA Board's position. On March 21, 2011, IPAD received a response, dated same, from Brent Walz, Civil Lead Attorney, Olmsted County Attorney's Office.</p> <p>A summary of the facts as Ms. King and Mr. Johnson provided them is as follows. They wrote in their opinion request:</p> <p class="opinion_quote">The [OCRRA Board] meeting publicly noticed to be held on January 18, 2011 at 4:15 pm actually was called to order at approximately 3:30 pm on that date.</p> <p>Ms. King and Mr. Johnson also wrote, Votes were taken during the January 18, 2011 meeting. ... Are they official and binding?</p> <p>Ms. King and Mr. Johnson provided documentation supporting their allegation that the County informed the public that the January 18, 2011, meeting would start at 4:15 pm, but that it actually started at 3:30 pm:</p> <p class="opinion_quote">- A copy of a letter sent to citizens from County Administration stating that the meeting was to start at 4:15 pm</p> <p class="opinion_quote">- A copy of the calendar on the County's website showing that the OCRRA Board meeting was to start at 4:15 pm</p> <p class="opinion_quote">- A transcription of a statement that David Hanson, Dodge County Commissioner, made at the meeting: Well, I did get on the e-mail what your agenda was. It wasn't supposed to start until after 4:00 but that's fine I got here at 3:30.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. King and Mr. Johnson's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it started a meeting on January 18, 2011, at 3:30 pm when the notice for the meeting stated it would start at 4:15 pm?</li> <li>Did the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it took votes during the January 18, 2011, meeting that started at 3:30 pm when the meeting notice stated it would start at 4:15 pm?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Did the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it started a meeting on January 18, 2011, at 3:30 pm when the notice for the meeting stated it would start at 4:15 pm?</em></p> <p>Pursuant to Minnesota Statutes, section 13D.04, public bodies, such as the OCRRA Board, are required to provide advance notice of meetings.</p> <p>It appears the January 18, 2011, OCRRA Board meeting was a regular meeting. The notice requirement set forth in Minnesota Statutes, section 13D.04, requires that a public body keep a schedule of its regular meetings on file at its primary office. The schedule must include the date, time, and location of all regular meetings. (See section 13D.04, subdivision 1, and Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267304" title="10-013" target="_blank">10-013</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267526" title="10-020" target="_blank">10-020</a>.) (If the body decides to hold a regular meeting at a different time, date, or location, it must then follow the notice requirements for a special meeting, which are outlined in section 13D.04, subdivision 2.)</p> <p>Also, if the public body proactively communicates to the public about an upcoming regular meeting, beyond what is required by the Open Meeting Law, e.g., via mail, email, or website, the information should be the same as what is on file at the body's primary office. Any such communications, though, do not negate the body's obligation to maintain the schedule notice required under section 13D.04, subdivision 1.</p> <p>Here, Mr. Walz did not provide the Commissioner with a copy of the schedule of regular meetings of the OCRRA Board, which would have included the January 18, 2011, meeting, or comment on whether the OCRRA Board created and maintains a schedule. Nor did he dispute that the meeting started at 3:30 pm, forty five minutes ahead of the time indicated on the County's website and in a letter sent from the County. In his comments to the Commissioner, Mr. Walz wrote, Any noncompliance with the Open Meeting Law was inadvertent and unintentional. Because Mr. Walz did not address the issue of the schedule of regular meetings, the Commissioner assumes the OCRRA Board does not have one, and concludes that the Board did not meet the notice requirements outlined in section 13D.04.</p> <p>In addition, based on information Mr. Walz provided, it appears the individuals who make up the OCRRA Board are the same individuals who make up the Olmsted County Board. If that is the case, it is important to note that for purposes of Chapter 13D, the OCRRA Board is a public body unto itself and must notice its meetings separate and apart from meetings of the Olmsted County Board.</p> <h2>Issue 2:</h2> <p><em>Did the Olmsted County Regional Rail Authority comply with Minnesota Statutes, Chapter 13D, when it took votes during the January 18, 2011, meeting that started at 3:30 pm when the meeting notice stated it would start at 4:15 pm?</em></p> <p>In <em>Sullivan v. Credit River</em>, 217 N.W.2d 502 (Minn. 1974), the Minnesota Supreme Court held that action a town board took at a public meeting was not invalid even though the board did not give proper notice of the meeting. The Court wrote:</p> <p class="opinion_quote">[t]he statute is directory rather than mandatory since it fails to provide a method for enforcement and does not specify that actions taken at a meeting which is not public shall be invalid.</p> <p><em>Sullivan</em> at 507.</p> <p>Subsequent cases have confirmed this holding. (See <em>Hubbard Broadcasting, Inc. v. City of Afton</em>, 323 N.W.2d 757, 765 (Minn. 1982) and <em>In the Matter of Petitions of D A Truck Line, Inc.</em>, 524 N.W.2d 1, 6 (Minn. App. 1994).)</p> <p>In his comments to the Commissioner, Mr. Walz also cited the <em>Sullivan</em> case and wrote, The Minnesota Supreme Court has held that a violation of the Open Meeting Law does not invalidate the actions taken at such meeting.</p> <p>Thus, based on the holding in Sullivan, even though the OCRRA did not give proper notice for its January 18, 2011, meeting, the votes taken at the meeting are valid.</p> <p>That said, however, the fact that a public body can hold an illegal meeting and take votes, which are valid, does not seem in keeping with the spirit of the Open Meeting Law. The Commissioner is aware of instances in similar circumstances where other public bodies have willingly held properly noticed subsequent meetings to reconsider and re-vote on specific issues.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issues Ms. King and Mr. Johnson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Olmsted County Regional Rail Authority Board did not comply with the notice requirements set forth in Minnesota Statutes, section 13D.04, in regards to its January 18, 2011.</li> <li>Votes the Olmsted County Regional Rail Authority Board took during its January 18, 2011, meeting are valid.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: April 8, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2677882662892668292663642022-01-18T19:26:01Z266258266262266262266263266263266293266265266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267809" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-03-10T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, would School District 309, Park Rapids, violate the data practices rights of a former employee if it disseminates certain data about the former employee to the Hubbard County Attorney?March 10, 2011; School District 309 (Park Rapids)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On December 20, 2010, the Information Policy Analysis Division (IPAD) received a letter dated December 16, 2010, from Michael Rengel, an attorney representing Independent School District 309, Park Rapids Area Schools. In his letter, Mr. Rengel asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains and whether the District can appropriately disseminate those data to the Hubbard County Attorney. IPAD requested additional information, which Mr. Rengel provided on January 12 and 20, 2011.</p> <p>In letters dated January 26, 2011, IPAD invited both the data subject, through his/her attorney, and the County Attorney to provide comments, but neither did.</p> <p>A summary of the facts as Mr. Rengel provided them is as follows. In his opinion request, Mr. Rengel wrote:</p> <p class="opinion_quote">... [I]t came to the attention of the police liaison officer that [a former employee might have violated school policy]. This matter was investigated and [the former employee] was interviewed by the school principal. We are not aware of the school principal utilizing a Tennessen Warning for the purposes of that preliminary interview. The school principal further interviewed [the former employee's child who is a District student]. no Tennessen Warning was provided to [the former employee's child] by the school principal.</p> <p class="opinion_quote">The school district hired an investigator to conduct an investigation related to the issues As part of the investigation eleven individuals were interviewed, including [the former employee], fellow teachers, [some] students, as well as past and present school administrators. As part of the investigation, [the former employee] was given a Tennessen Warning with respects [sic] to all three of his interviews with [the investigator]. </p> <p class="opinion_quote">The school district's request for an advisory opinion is based upon a request by [the] Hubbard County Attorney </p> <p>Mr. Rengel stated that the District maintains the following information:</p> <p class="opinion_quote">1. [P]rincipal's notes regarding inquiry made of [the former employee]. No Tennessen Warning was provided [at this inquiry].</p> <p class="opinion_quote">2. [P]rincipal's notes regarding inquiry made of [the former employee's child]. Present at this inquiry were [the former employee and his/her child and the principal]. No Tennessen Warning was provided [at this inquiry].</p> <p class="opinion_quote">3. Investigative information obtained by [the District's investigator] from [the former employee], including interview summaries of [the former employee] after Tennessen Warnings [were] provided </p> <p class="opinion_quote">4. Interview summaries by [the District's investigator] from individuals (other than [the former employee]) after Tennessen Warnings [were] provided, including [staff, students other than the former employee's child, and law enforcement].</p> <p>The District collected and created these data while the individual was an employee of the District.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Rengel's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, would School District 309, Park Rapids, violate the data practices rights of a former employee if it disseminates certain data about the former employee to the Hubbard County Attorney?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Private data are accessible to the data subject and not to the public. (Minnesota Statutes, section 13.02, subdivision 12.) Private data can be disclosed outside the originating entity if there is statutory authority to do so or if the data subject has given written informed consent. (Minnesota Statutes, section 13.05, subdivisions 3 and 4.)</p> <p>Chapter 13 also sets some additional requirements around the collection and later use of private or confidential data about an individual. When collecting private or confidential data about an individual from that individual, the entity must provide a notice, commonly referred to as a Tennessen warning. (Minnesota Statutes, section 13.04, subdivision 2.) This notice must contain the following: (1) the purpose and intended use of the data; in other words, why the entity is collecting the data and how it will use the data; (2) whether the individual can refuse or is legally required to provide the requested data; (3) what the consequences are of supplying or not supplying the data; and (4) the identity of persons or entities outside the collecting entity authorized by state or federal law to receive the data. The Commissioner previously has opined that if an entity does not give an individual a Tennessen notice when circumstances warrant it or if an entity's notice is inadequate, the entity cannot store, use, or disclose any of the data it collected from the individual. (Minnesota Statutes, section 13.05, subdivision 4 and Advisory Opinion 07-009.)</p> <p>Data in which former and current employees, and independent contractors are the subjects are classified pursuant to Minnesota Statutes, section 13.43. Certain data about employees are public (section 13.43, subdivision 2), and certain data are private (section 13.43, subdivision 4). Subdivision 15 of section 13.43 provides that private personnel data may be disclosed to a law enforcement agency for the purpose of reporting a crime or alleged crime committed by an employee, or for the purpose of assisting law enforcement in the investigation of a crime committed or allegedly committed by an employee.</p> <p>Data of which students are the subjects are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, data about students are private, and may not be released without informed consent.</p> <p>Mr. Rengel asked the Commissioner to assist in determining what of the data in question the District can disclose to the County Attorney. The answer depends upon the classification of the data. The Commissioner has not seen the data and in situations such as these, can offer only general guidance as government entity staff, with their knowledge of the relevant facts, circumstances, and involved data subjects, are in the best position to make decisions about classification.</p> <p>Before proceeding, the Commissioner notes that any data the District determines are public can be disclosed to the County Attorney. (Minnesota Statutes, section 13.02, subdivisions 14 and 15.) Also, any of the data in question of which an employee or student is the subject can be disclosed to the County Attorney if the employee or student (or student's parent(s)) gives informed consent to the release or there is a court order.</p> <p>1. Mr. Rengel asked about disclosing to the County Attorney data in the principal's notes from the inquiry made of [the former employee]. Mr. Rengel noted that present at the meeting were the employee, union representatives, an officer (the Commissioner assumes this is the school police liaison officer but is not certain), and the principal. Mr. Rengel stated that no Tennessen notice was provided. Because multiple parties were at the inquiry, it is possible the notes contain data about multiple data subjects though the Commissioner assumes most of data are about the former employee.</p> <p>Data of which employees are the subject are classified pursuant to Minnesota Statutes, section 13.43. Subdivision 15 of section 13.43 provides that certain private data can be disseminated to a law enforcement agency in certain situations. Mr. Rengel stated the principal did not give the former employee a Tennessen notice. Therefore, any data the principal asked the former employee to provide about him/herself cannot disclosed to the County Attorney unless the former employee gives informed consent or there is a court order. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267652" title="07-009" target="_blank">Advisory Opinion 07-009</a>.)</p> <p>Any private data in the notes about the former employee that the employee did not provide that are of the type described in section 13.43, subdivision 15, can be disclosed to the County Attorney.</p> <p>Any private data about the principal of the type described in Minnesota Statutes, section 13.43, subdivision 15, can be disclosed to the County Attorney.</p> <p>The classification of any data in the notes of which the union representatives and the officer are the subjects depends upon whether they are employees of the District. If so, the data are Minnesota Statutes, section 13.43 (personnel) data and can be disclosed in a manner similar to that discussed above in regard to the principal and the former employee. If they are not employees, any data about them are public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.</p> <p>2. Mr. Rengel also asked about disclosing to the County Attorney data in the principal's notes regarding the inquiry made of [the former employee's child]. The child is a student in the District. Given the situation, it is likely the notes contain data about multiple data subjects, i.e., the child, the former employee (the child's parent), and possibly the principal. The Commissioner above has discussed the classification of any data of which the former employee and the principal are the subjects.</p> <p>Data of which students are the subjects are classified pursuant to Minnesota Statutes, section 13.32; most are private. Section 13.32 does provide authority for school districts to release certain private data about students in certain situations. However, the Commissioner, not knowing the content of the data, is not in a position to determine whether there is a provision in section 13.32 permitting release to the County Attorney. If there is, and the principal asked the child to provide private or confidential data about him/herself, the principal was required to give the child a Tennessen notice. If the child was too young to understand the implications of the notice, the principal should have given the notice to the child's parent(s). (Minnesota Statutes, section 13.02, subdivision 8.) Mr. Rengel stated that no Tennessen notice was provided. Therefore, the District cannot disclose to the County Attorney any data the principal asked the child to provide about him/herself.</p> <p>If there are private data about the student in the notes that did not come from the student, and Minnesota Statutes, section 13.32, or FERPA provides statutory authority for releasing those data to the County Attorney, the District can do so.</p> <p>3. Mr. Rengel inquired also about releasing investigative information obtained by the District's investigator from the former employee, including investigative summaries of the [former employee] after Tennessen Warnings [were] provided. Although it is possible the investigator is the subject of some of the data, the Commissioner assumes most of the data are about the former employee. As discussed above in 1, data of which employees and independent contractors (likely the investigator is an independent contractor) are the subject are classified pursuant to Minnesota Statutes, section 13.43. Certain private personnel data can be disclosed to law enforcement agencies.</p> <p>Mr. Rengel provided a copy of a document entitled, Notice of Rights Employee. The notice appears to include most of the components required in a Tennessen notice as well as some additional items. For purposes of this opinion, the Commissioner is focusing on whether the notice contains the fourth element: the identity of persons or entities outside the collecting entity authorized by state or federal law to receive the data. The final provision on the District's notice states:</p> <p class="opinion_quote">The information which you provide during this interview may be released to Park Rapids Area Schools, agents of Park Rapids Area Schools, insurer of Park Rapids Area Schools and their representatives, or any other individuals directly or indirectly involved in this matter, including complainants and other witnesses.</p> <p>In the Commissioner's opinion, it is not reasonable to conclude that the former employee could have understood that the phrase, or any other individuals directly or indirectly involved in this matter meant that the District could disclose the data to law enforcement. Therefore, the District's Tennessen notice is not adequate and any of the investigative information that the former employee provided about him/herself cannot be disseminated to the County Attorney unless the former employee gives informed consent or there is a court order. As discussed above in 1, data about the former employee that s/he did not provide can be disclosed to the County Attorney as allowed pursuant to Minnesota Statutes, section 13.43, subdivision 15.</p> <p>4. Finally, Mr. Rengel asked about releasing data in interview summaries by the District's investigator gathered from individuals other than the former employee after Tennessen [notices were] provided, including fellow teachers, students (other than [the former employee's child]), past and present school administrators and law enforcement.</p> <ul> <li>For discussion about personnel data, see 1 and 3 above</li> <li>For discussion about student data, see 2 above</li> <li>For data about non-employee data, see 1 above</li> </ul> <p>Although Mr. Rengel stated that Tennessen notices were provided, he did not indicate whether they were the same as the notice the former employee received. If so, as the Commissioner stated above in 3, his opinion is that the District's notice is not adequate. Therefore, the District can disclose, to the County Attorney pursuant to Minnesota Statutes, section 13.43, subdivision 15, only public and private data the interviewees provided about other individuals. The District also can disclose the data if the individuals have given informed consent or there is a court order.</p> <p>Regarding data in interview summaries from law enforcement, assuming these individuals are not employees of the District, any data about them the District maintains are public pursuant to the general presumption. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Rengel raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 15, School District 309, Park Rapids, has authority to disclose certain private data of which the former employee is the subject to the Hubbard County Attorney. However, because neither the District principal nor the District's investigator provided adequate Tennessen notices as required pursuant to Minnesota Statutes, section 13.04, subdivision 2, any data collected from the former employee of which s/he is the subject cannot be disclosed to the County Attorney unless the former employee has given informed consent or there is a court order.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Spencer Cronk <br /> Commissioner</p> <p class="date">Dated: March 10, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2678092669202662692664932022-01-18T19:26:01Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267277" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-01-20T16:15:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the Dakota County Community Development Agency (CDA) maintains in compliance with prevailing wage laws: the home addresses of contractor/subcontractor employees contained in certified payroll reports?January 20, 2011; Dakota County Community Development Agency36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <p><br /> <strong>Note: Minnesota Statutes, section 13.43, subdivision 19, now classifies certain data discussed in this opinion as private, however the data are accessible to the public for prevailing wage purposes.</strong> <br /></p> <h2>Facts and Procedural History: <br /></h2> <p>On January 6, 2011, the Information Policy Analysis Division (IPAD) received an email from Janet Shefchik, the data practices compliance official for the Dakota County Community Development Agency (CDA). In her email, Ms. Shefchik asked the Commissioner to issue an advisory opinion regarding the classification of certain data the CDA maintains.</p> <p>A summary of the facts as Ms. Shefchik provided them follows. A person asked the CDA for the following data: Certified payroll reports for the Thompson Heights Project located in South St. Paul for the following: LBI Companies, Rocohn [sic] Corporation Show [sic] removal company- weeks of 11/15/2010 to 11/21/2010, 11/22/2010 to 11/28/2010. Ms. Shefchik wrote:</p> <p class="opinion_quote">In reviewing the payroll data in light of the request as stated above, and MN Statutes 13.05 and 13.43, [CDA redacted] several items from the payroll reports such as the individual employees' tax withholding information, and the employees' addresses.</p> <p class="opinion_quote">[The data requestor responded that] he felt the employee addresses should be included as public information. He sent a copy of a Supreme Court opinion on a data request made by the International Brotherhood of Electrical Workers Local No 292 v. City of St. Cloud, as evidence of his point.</p> <p class="opinion_quote">In this latest email, however, [the data requestor] indicates that he feels the addresses should be released, as they are public. Upon review of the supreme court case it appears the data requested are public. [Emphasis provided.]</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Shefchik's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the Dakota County Community Development Agency (CDA) maintains in compliance with prevailing wage laws: the home addresses of contractor/subcontractor employees contained in certified payroll reports?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Upon request, government entities must provide access to public government data.</p> <p>Minnesota Statutes, section 13.43 classifies data on individuals maintained by a government entity because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.</p> <p>Public personnel data are enumerated at section 13.43, subdivision 2(a); pursuant to subdivision 4, all other personnel data are private. Home addresses of public employees are not listed in subdivision 2(a), and are therefore classified as private.</p> <p>As noted above, in 2009, the Minnesota Supreme Court held that payroll records of a subcontractor obtained by the City of Saint Cloud to confirm payment of the prevailing wage are not personnel data for purposes of section 13.43, and thus the payroll records, including home addresses of the subcontractor's employees, are public pursuant to section 13.03. (See <em>Intl. Brotherhood of Elec. Workers, Loc. No. 292 v. City of St. Cloud and Design Electric Inc.</em>, 765 N.W.2d 64 (Minn. 2009).</p> <p>The Court based its decision on the definition of personnel data as data on an individual. Individual is defined at Minnesota Statutes, section 13.02, subdivision 8, as a natural person, which does not include a corporation. The Court found that even though the subcontractor's employees are individuals, the individual employees are not acting as the City's independent contractors. The corporation is the City's contractor; therefore section 13.43 does not apply to the corporation's employees.</p> <p>The Court concluded that unless the data are protected by another provision in Chapter 13 (e.g., Social Security numbers are private under Minnesota Statutes, section 13.355), the employee payroll data maintained by the City are public.</p> <p>The issue here is the same as that in <em>Intl. Brotherhood</em>, i.e., CDA maintains data about individuals employed by its contractor/subcontractor. Accordingly, the payroll data CDA maintains, including home addresses of those individuals, are presumptively public.</p> <p>The Court noted, [a]lthough the result here - that an individual employed by a private company is entitled to less data protection than an individual employed by the State - seems anomalous, that is how the legislature wrote the statute.</p> <hr /> <br /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Shefchik raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the following data the Dakota County Community Development Agency (CDA) maintains in compliance with prevailing wage laws are public: the home addresses of contractor/subcontractor employees contained in certified payroll reports.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Ryan Church <br /> Acting Commissioner</p> <p class="date">Dated: January 20, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2672772672572022-01-18T19:26:01Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266851" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2011-01-03T16:14:43ZDid Johnson Controls, Inc. comply with Minnesota Statutes, Chapter 13, when it denied access to data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?January 3, 2011; Johnson Controls, Inc. (ISD 2142-St. Louis County)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><em><br /></em> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History:</h2> <p>On November 8, 2010, the Information Policy Analysis Division (IPAD) received an email from Marshall Helmberger, on behalf of the Timberjay Newspapers. In his email, Mr. Helmberger asked the Commissioner to issue an advisory opinion regarding his right to get access to certain data Johnson Controls, Inc. (JCI), a contractor with Independent School District 2142, St. Louis County, maintains. IPAD asked for additional information, which Mr. Helmberger provided on November 16, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Shamus P. O'Meara, attorney for JCI, in response to Mr. Helmberger's request. The purposes of this letter, dated November 17, 2010, were to inform Mr. O'Meara of Mr. Helmberger's request and to ask him to provide information or support for JCI's position. Mr. O'Meara responded, in a letter dated December 13, 2010. IPAD then asked JCI to provide additional information, i.e., copies of contracts it has entered into with the District. Mr. O'Meara provided copies of executed proposal contracts on December 18, 2010.</p> <p>The Commissioner also invited Charles Rick, District Superintendent, to submit comments. Stephen M. Knutson, attorney for the District, responded, in a letter dated December 13, 2010.</p> <p>A summary of the facts follows. According to Mr. Helmberger, in a letter dated October 20, 2010, he asked JCI for access to the following data related to the restructuring of the District:</p> <p class="opinion_quote"><em>1) Detailed construction budgets for both of the new school projects.</em></p> <p class="opinion_quote"><em>2) A detailed spreadsheet showing how JCI achieves its purported savings of $5.6 million from the restructuring.</em></p> <p class="opinion_quote"><em>3) Detailed documentation supporting the JCI invoices submitted by the company to date.</em></p> <p class="opinion_quote"><em>...</em></p> <p class="opinion_quote"><em>4) Any revisions, or proposed revisions in the JCI contract, since the ones signed in January of this year.</em></p> <p>Mr. Helmberger had earlier requested the same data from the District, and was told by Superintendent Rick, in a letter dated October 13, 2020, that the District or JCI had already provided Mr. Helmberger with access or the District did not maintain data responsive to his request, or he needed to clarify the data he was seeking. Superintendent Rick also stated that the District was advising JCI of Mr. Helmberger's request and that if JCI does not have any objection or basis for withholding the data, to provide the responsive data directly to you.</p> <p>Regarding item 1 above, Mr. Rick informed Mr. Helmberger that the District does not maintain the data as JCI has taken back information it provided based upon the position that it constitutes JCI's proprietary information.</p> <p>In his response to Mr. Helmberger, Mr. O'Meara wrote:</p> <p class="opinion_quote"><em>You have requested information from JCI, a private business, and thus no response is required.</em></p> <p class="opinion_quote"><em>We are also advised that you have requested the same information from the St. Louis County School District, and that the District has interacted with you concerning the requested information. To the extent the requested information constitutes government data in the possession of the District JCI would have no obligation to provide the requested information even if the government practice act data [sic] is applicable to your request to JCI. See Minn. Stat. 13.05, subd. 11.</em></p> <p>In his comments to the Commissioner, Mr. O'Meara wrote:</p> <p class="opinion_quote"><em>In April of 2008, the District hired JCI to lead Phase I of a three phase process co-developed by JCI and the District to help determine the District's future school organization. In September of 2008, the District, with consultation from JCI, began working on Phase II of their process.</em></p> <p class="opinion_quote"><em>In approximately December, 2008, the District, working with JCI, established a financial baseline from which to frame the financial sustainability of the plan options and allow for reinvestment of additional educational enhancements.</em></p> <p>In his comments to the Commissioner, Mr. Knutson wrote:</p> <p class="opinion_quote"><em>... The School District and JCI are parties to a number of contracts under which JCI has provided various services to the School District. ...</em></p> <p class="opinion_quote"><em>... [The District] advised Mr. Helmberger that School District representatives were shown certain data by JCI representatives and that data was retrieved by JCI. Consequently, that data was not maintained by the School District....</em></p> <p class="opinion_quote"><em>...</em></p> <p class="opinion_quote"><em>While the School District is a government entity subject to the requirements of Chapter 13, JCI, a private entity, is not generally subject to the requirements of Chapter 13. The Department has recognized that where a private entity has a contractual relationship with a governmental entity, there may be situations where the private entity, itself, or the data created/collected by the private entity as part of fulfilling its contractual obligations maybe subject to Chapter 13. See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267169" title="99-027" target="_blank">Advisory Op. 99-027</a> (August 20, 1999.)</em></p> <p class="opinion_quote"><em>To determine whether the public is entitled to gain access to the data requested by Mr. Helmberger depends on the contractual relationship between the School District and JCI. The School District and JCI have entered into a separate contract at each phase of the three-phase approach devised for the overall project. The data requested by Mr. Helmberger appears to arise from services provided by JCI in Phases II and III.</em></p> <hr /> <h2><em>Issue:</em></h2> <p><em>Based on Mr. Helmberger's opinion request, the Commissioner agreed to address the following issue:</em></p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"><em>Did Johnson Controls, Inc. comply with Minnesota Statutes, Chapter 13, when it denied access to data related to a contract JCI has entered into with Independent School District 2142, St. Louis County?</em></td> </tr> </tbody> </table> <hr /> <h2><em>Discussion:</em></h2> <p><em>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</em></p> <p><em>Generally, private organizations, such as JCI, are not subject to the requirements of Minnesota Statutes, Chapter 13. However, they are obligated to comply with Chapter 13 if they enter into a contract with a government entity to perform any of its functions and maintain government data in connection with that contractual relationship.</em></p> <p><em>Pursuant to Minnesota Statutes, section 13.05, subdivision 11:</em></p> <p class="opinion_quote"><em>(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</em></p> <p class="opinion_quote"><em>(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</em></p> <p><em>Mr. Knutson wrote to the Commissioner:</em></p> <p class="opinion_quote"><em>A review of the contracts for Phases II and III reveal that there was no language included therein that makes JCI itself subject to Chapter 13. However, [Chapter 13] provides that a private party who has contracted with a government entity to perform a government function has a duty to provide the public with government data unless the government entity also maintains the data.</em></p> <p><em>Mr. Knutson discussed the applicability of a 2003 Minnesota Appellate Court case, which the Commissioner addressed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267459" title="05-034" target="_blank">Advisory Opinion 05-034</a>. The Commissioner opined:</em></p> <p class="opinion_quote"><em>In</em> WDSI, Inc. v. The County of Steele<em>, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required in section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:</em></p> <p class="opinionquoteinquote"><em>To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it.</em></p> <p class="opinion_quote"><em>(See</em> WDSI<em>, p.622. Also see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>.)</em></p> <p>See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267657" title="03-033" target="_blank">Advisory Opinion 03-033</a>.</p> <p>Mr. Knutson has stated that the District believes it does not maintain data responsive to Mr. Helmberger's request. If that is the case, then per section 13.05, subdivision 11(b), JCI is obligated, as a private party under contract with a government entity to perform a government function, to provide the public with access to public government data it maintains, that the District does not.</p> <p>Based upon the information the parties provided, the Commissioner is not aware of any provision of state or federal law that classifies the kind of data Mr. Helmberger requested as other than public. In his response to Mr. Helmberger, Mr. O'Meara suggested several possible ways by which JCI might properly deny access to data it maintains in connection with its contracts with the District: as trade secret information or protected by the attorney client privilege or the work product doctrine; as proprietary information, or to protect data involved in a pending civil action. However, he did not provide any specific bases to enable the Commissioner to determine whether any of the data in question may be classified as trade secret, or protected by attorney-client privilege or as work product. Furthermore, Chapter 13 does not classify proprietary information, and in order to protect data involved in a pending civil action, the chief attorney acting for the government entity must determine whether a civil legal action is pending. (See Minnesota Statutes, section 13.39.)</p> <p>Accordingly, if it has not already done so, JCI must provide to Mr. Helmberger the public government data he has requested, that JCI maintains but the District does not.</p> <p>As a final note, pursuant to Minnesota Statutes, section 15.17, the District must create and maintain records that document its official activities. The Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267529" title="10-018" target="_blank">Advisory Opinion 10-018</a>:</p> <p class="opinion_quote">[E]ven if the Foundation has not provided to the City the names of the contributors and amounts pledged and contributed, under section 15.17, these data are records necessary to a full and accurate knowledge of [the entity's] official activities and, as such, should be maintained by either the City or the Foundation (on behalf of the City). Therefore, even if the City is not maintaining the data, the City must be able to retrieve the data from the Foundation or the Foundation, upon request, must provide the data to a data requestor.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Helmberger raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Johnson Controls, Inc. did not comply with Minnesota Statutes, Chapter 13, when it denied access to data related to a contract JCI has entered into with Independent School District 2142, St. Louis County.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Ryan Church <br /> Acting Commissioner</p> <p class="date">Dated: January 3, 2011</p> <hr /></td> </tr> </tbody> </table> </div>2668512663722022-01-18T19:26:01Z266258514379266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267174" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-11-23T16:14:43ZDid the Minnesota Department of Public Safety (DPS) comply with Minnesota Statutes, Chapter 13, in responding to a data request for the “names of individuals whose driving privileges have been affected by the re-pass conviction information received” by DPS?November 23, 2010; Minnesota Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 12, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated February 3, 2009, from Mark Anfinson, an attorney, on behalf of his client, KSTP-TV. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding KSTP's right to gain access to certain data from the Minnesota Department of Public Safety (DPS). IPAD asked Mr. Anfinson to provide additional information, which he did on October 6, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Michael Campion, DPS Commissioner, in response to Mr. Anfinson's request. The purposes of this letter, dated October 15, 2010, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for DPS's position. Mr. Newton, DPS General Counsel, responded, in a letter dated October 22, 2010.</p> <p>A summary of the facts follows. In his original request, Mr. Anfinson wrote:</p> <p class="opinion_quote">Sometime in the past year or so, [DPS] apparently learned that, due to a court system computer error, there had been a significant delay in reporting to DPS certain criminal convictions that under state law require suspension or cancellation of the offender's driving privileges. After the oversight was discovered, DPS did obtain the names of the offenders, and began notifying them that their driver's licenses were being suspended or cancelled, even though this would not occur until months or even years after the convictions had been entered.</p> <p class="opinion_quote">Last fall, a client of mine requested access to the names of the affected drivers who were being notified by DPS as a result of the computer glitch. DPS denied the request. I then contacted DPS to pursue the request, contending that the information sought by my client was public, or at least accessible to journalists, under explicit provisions of state and federal law.</p> <p class="opinion_quote">In response, I received a letter from [Mr. Newton.] He again rejected the request for access, citing Minn. Stat. section171.12 and portions of the federal Drivers' Privacy Protection Act (DPPA), specifically 18 U.S.C. section2721. Mr. Newton maintained that the names of drivers are protected' under federal law, and that only [i]f you have a name and required identifiers' will the data that is public' be produced.</p> <p>Mr. Newton wrote to the Commissioner:</p> <p class="opinion_quote">The matter originated when a reporter from KSTP submitted a request . . . for the names of individuals whose driving privileges have been affected by the re-pass conviction information received by [DPS.]' In essence, the request was for the identity and conviction information on certain drivers, which specifically includes names of drivers. [DPS] responded . . . denying access to the data pursuant to state and federal law.</p> <p class="opinion_quote">As an initial matter, be advised that [DPS] does not maintain such data. The courts, upon learning of a computer problem, sent approximately 4,000 traffic citations to DPS for processing. These citations should have come to DPS much sooner but had not because of the court computer error. The citations were then entered on the record of the cited individuals. Approximately 1,600 citations involved charges that resulted in the suspension or cancellation of driving privileges. These approximately 1,600 citations . . . were not segregated into any list or separate category; the citation was entered, the record was read, a letter was sent and that was noted on the record as well. There is no segregated list or pile of letters that can be disseminated. Requiring [DPS] to comply with the original request would require an individual to go through all 4000 records, determine which were repass' violations, then determine if that was the violation which resulted in cancellation or suspension, and develop a separate list. [DPS] is under no obligation to create data it does not have.</p> <p class="opinion_quote">If however, the Department of Administration insists on requiring [DPS] to create data it does not have, be advised that federal and state law protect names of drivers under the [DPPA and Minnesota Statutes, section 171.12.] State law requires that data provided by individuals to obtain a driver's license should be treated as provided by federal law. . . . Federal law classifies the data as private with regards to discretionary public uses. Based on this law it is [DPS's] practice not to release names of drivers. The fact that the request is for a specific grouping of individuals does not allow for an abdication of [DPS's] responsibility under the federal law to protect these drivers' names.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did the Minnesota Department of Public Safety (DPS) comply with Minnesota Statutes, Chapter 13, in responding to a data request for the names of individuals whose driving privileges have been affected by the re-pass conviction information received by DPS?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Section 13.03, subdivision 1 also requires government entities to maintain government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>Pursuant to DPPA, DPS is generally prohibited from disclosing to the public certain personal information, defined as information that identifies an individual, including a photograph, social security number, name, address, etc., but does not include information on vehicular accidents, driving violations, and driver's status. (See 18 U.S.C. section 2725(3).) In addition, under Minnesota Statutes, section 171.12, if DPS determines that a use of data governed by DPPA is related to motor vehicle or driver safety or theft the commissioner (of DPS) shall disclose the data.  According to Mr. Newton, DPS has not made that determination, and therefore takes the position that the data, i.e., driver's names, are private. Mr. Newton did state to Mr. Anfinson that if he ha[d] a name and required identifiers, the data that is public . . . will be produced.</p> <p>Mr. Anfinson and Mr. Newton discussed at length their disagreement on the proper application of federal and state law. According to Mr. Anfinson:</p> <p class="opinion_quote">In addition my client is a news organization, and therefore benefits from the exception to the privacy rules found in 18 U.S.C. section2721(b)(14). That provision allows disclosure of even protected personal information where the intended use is related to the operation of a motor vehicle or public safety.' The exception is codified in Minn. Stat. section171.12, subd. 7(a), which contains the exact language used in the DPPA. . . .</p> <p class="opinion_quote">As you may know this exception has long been interpreted and applied by Driver and Vehicle Services Division of DPS as authorizing news media access to otherwise private data about persons who have Minnesota driver's licenses. The legislative history of the statute clearly supports this practice.</p> <p>Neither Mr. Newton nor Mr. Anfinson provided relevant legislative history to the Commissioner. In his response to Mr. Anfinson on the issue of a media exception to the general rule, Mr. Newton wrote, [b]ecause the name cannot be released under federal law we do not need to address the exception' you cite . . . .</p> <p>The Commissioner was not provided information that enables her to make a determination on this point; however, she respectfully disagrees that the issue before her requires a resolution of that disagreement.</p> <p>Minnesota Statutes, section 171.12, subdivision 7(a), provides: [d]ata on individuals <em>provided to obtain a driver's license</em> or Minnesota identification card shall be treated as provided by United States Code, title 18, section 2721 [DPPA], as in effect on May 23, 2005, and shall be disclosed as required or permitted by that section. (Emphasis added.)</p> <p>The requested data, i.e., conviction data that the courts transmitted to DPS resulting in DPS suspending or cancelling drivers' licenses, are not data governed by section 171.12 (data individuals provided to DPS to obtain a license.) Therefore, the data sent to DPS from the courts are not classified under section 171.12, and are presumptively public. (See also Minnesota Statutes, section 13.03, subdivision 4(e).)</p> <p>There is, however, a question whether DPS maintains the data it received from the courts that KSTP requested. Mr. Newton stated that DPS does not maintain such data, and also that all decisions and transactions taken can be fully tracked. He also said that DPS would have to create data in order to provide KSTP with access. That seems to suggest that DPS can retrieve the relevant data, albeit at some cost to DPS. Mr. Newton stated correctly that Chapter 13 does not obligate government entities to create data. However, as the Commissioner has opined numerous times, government entities are obligated to provide the public with access to public data, even if the entity has not maintained the data such that they are easily accessible for convenient use. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508" title="00-011" target="_blank">00-011</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/266834" title="10-016" target="_blank">10-016</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267529" title="10-018" target="_blank">10-018</a>.)</p> <p>In addition, Minnesota Statutes, section 15.17, provides that government entities must keep records necessary to a full and accurate knowledge of [the entity's] official activities. Whether the courts maintain those data is outside the purview of Chapter 13 (see Minnesota Statutes, section 13.90.) DPS is required to maintain data that document its official actions.</p> <p>DPS should maintain a copy of data provided by the court for a full and accurate knowledge of its official actions to suspend or revoke a driver's license. The problem appears to be in the manner in which DPS maintains the data about driving violations and driver's status. DPS apparently comingles driver license application data with data that it does not obtain in connection with a license application, such as driver violation and status data, and treats all the data as protected under DPPA because that's the original record in its database. It is the Commissioner's opinion that DPS has the authority and the obligation to release the re-pass conviction data, regardless how it is currently maintaining the data.</p> <br /> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The Minnesota Department of Public Safety (DPS) did not comply with Minnesota Statutes, Chapter 13, in responding to a data request for the names of individuals whose driving privileges have been affected by the re-pass conviction information received by DPS.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: November 23, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2671742663682022-01-18T19:36:03Z266258266279266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267415" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-11-16T16:14:43ZDid the City of Wayzata comply with Minnesota Statutes, Chapter 13, when it charged $265 to copy approximately 61 pages from the approximately 473 pages that the requestor inspected? November 16, 2010; City of Wayzata36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On September 14, 2010, the Information Policy Analysis (IPAD) received a letter from Patrick McCarthy. In his letter, Mr. McCarthy asked the Commissioner to issue an advisory opinion regarding copy charges assessed to him by the City of Wayzata.</p> <p>IPAD, on behalf of the Commissioner, wrote to Allan Orsen, City Manager, in response to Mr. McCarthy's request. The purpose of this letter, dated September 27, 2010, was to inform him of Mr. McCarthy's request and to ask him to provide information or support for the City's position. On October 15, 2010, IPAD received a response from Robert Meller, attorney for the City.</p> <p>A summary of the facts as Mr. McCarthy provided them is as follows. In a letter dated May 18, 2010, Mr. McCarthy requested certain data related to a school safety study:</p> <p class="opinion_quote">1) any and all draft Study reports (including all text, exhibits, and figures) that were created sent or received);</p> <p class="opinion_quote">2) any and all memoranda that were created, sent, or received</p> <p class="opinion_quote">3) any and all communications, including electronic messages, that were created, sent or received; and</p> <p class="opinion_quote">4) copies of all documents that were created, sent, or received that contain measurements</p> <p>Mr. McCarthy asked for copies but added, If you believe there are charges associated [with] this request, please identify the manner in which each has been calculated and the specific data to which you believe each applies. I will promptly forward payment for all lawful charges.</p> <p>In a letter dated May 24, 2010, Mr. Meller replied, Please give me a call so that we may discuss your prepayment of the City's actual costs of retrieval of the government data you requested.</p> <p>In a letter dated May 25, 2010, Mr. McCarthy asked Mr. Meller to provide him with an estimate of the total number of pages and an estimate of the charges.</p> <p>Mr. Meller, on June 2, 2010, then wrote to inform Mr. McCarthy that the City had completed compilation of all documents related [his request].euro;#157; Mr. Meller stated, It took [the City Engineer] 1.25 hours to compile copies of the documents requested which computes to 1.25 x $48.70 per hour for a total owing of $60.98.</p> <p>Mr. Meller also stated that the total number of pages was 240 and the fee was $.40 per page so the total charge was $156.99 ($96 + $60.98). (As discussed below, the City later increased the copy charge to approximately $265.) He wrote, Once I receive your check for $156.99, I can have [the City Engineer] mail the documents directly, or we could make them available for you to pick up at an agreed upon time at City Hall.</p> <p>From this point forward, the parties exchanged correspondence about the copy charges, Mr. McCarthy seeking to clarify whether the City was requiring him to pay if he wanted to inspect the data.</p> <p>In a June 8, 2010, letter, Mr. Meller wrote:</p> <p class="opinion_quote">The documents that we have compiled for you are complete. I had apparently misunderstood that you wanted actual copies of the responsive documents If, however, you wish to inspect the documents, but receive no copies, there will be no charge. Please either send me the check and I will mail the copies or, if you prefer, we can arrange for a time for you to inspect, but not copy, the documents at a mutually agreed upon and convenient place and time.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. McCarthy's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Wayzata comply with Minnesota Statutes, Chapter 13, when it charged $265 to copy approximately 61 pages from the approximately 473 pages that the requestor inspected?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 3, provides for situations in which a person who is not the data subject requests access to government data. If the person wants to inspect the data, the entity may not charge any fee (section 13.03, subdivision 3(a)).</p> <p>If the person wants copies of the data, the entity can choose to charge a fee. (Section 13.03, subdivision 3(c).) If the requestor is asking for copies of anything other than paper documents, the entity's fee is to be based on the actual costs of searching for and retrieving the data, and making the copies. If the requestor is asking for copies of paper documents, and the requested number of pages is 100 or fewer, the entity can charge no more than $.25 per page. If the number of pages is more than 100, the entity can charge the actual costs of searching for and retrieving the data, and making the copies.</p> <p>In his comments to the Commissioner, Mr. Meller wrote:</p> <p class="opinion_quote">To summarize the City's position, the amount the City charged Mr. McCarthy was for the compilation and copying of the data he requested, though the city eventually waived the copying charges.</p> <p class="opinion_quote">Interpreting Mr. McCarthy's expansive requests for any and reports was difficult and time consuming for the City. It required staff time to make the necessary topical and key word searches. Mr. McCarthy's requests included several items outside the scope of the Data Practices Act and/or items that necessarily required staff time to prepare, such as new inventories of the requested documents In addition certain professional and administrative staff of the City's consultant, SRF, who conducted the traffic study, were also used for the requests Mr. McCarthy made directly to them. </p> <p class="opinion_quote">With respect to the charges for the copies requested by Mr. McCarthy, as a courtesy Mr. McCarthy and to save the time or arguing about the matter, the City lowered its standard copying charge on two occasions from .40 per page to .25 per page to .10 per page, and eventually waived that charge altogether. However, hundreds of copies were requested and made available to Mr. McCarthy at his request, even though ultimately he decided he only wanted 61 of these copies.</p> <p>Before proceeding, it is important to discuss a couple of Mr. Meller's comments. First, he states that several of the items Mr. McCarthy requested are outside the scope of Chapter 13 or required staff time to prepare, such as new inventories of the requested documents. The Commissioner does not agree that anything in the May 18 data request related to the school safety study (the subject of this opinion) is a request for the City to create additional data. (Previous advisory opinions have discussed that government entities are not required to create data to respond to requests.)</p> <p>Second, there seems to be some confusion about data created, collected, and maintained by the City's contractor, SRF. Assuming the data Mr. McCarthy requested are related to the contract, they are government data, regardless of whether it is SRF or the City that maintains the data. As such, any fee the City/SRF assesses is dictated by section 13.03. It appears the City's final charge of $265 incorporates a $204.30 charge from SRF, comprised of one hour of staff time billed at $134.05 + one hour of staff time billed at $70.25. Mr. Meller did not explain to the Commissioner how this charge fits within the copy charge parameters set forth in Chapter 13.</p> <p>The issue before the Commissioner is whether the City's charge of $265 is appropriate. The answer depends on how the City maintains the data Mr. McCarthy wanted copied. If some of the data are electronically maintained, which appears to be the case, the City can charge the actual costs of searching for and retrieving the data, plus the actual cost of making the copies. If some of the data are maintained as paper documents, the City can charge 1) $.25 if the number of pages is 100 or fewer or 2) the actual costs of searching for and retrieving, and the actual cost of making the copies, if the number of pages is over 100.</p> <p>Here, regarding data the City maintains in electronic format, staff made copies of (printed) those data apparently before it was clear whether Mr. McCarthy wanted to inspect or get copies. At that point, the City was maintaining the data in paper form and the Commissioner's opinion is that the City can charge only $.25 per page for those copies, not actual cost. To avoid this result, a government entity could adopt a policy to provide a requestor with an estimated cost for producing copies of electronic data and require pre-payment prior to preparing the copies. Also, if the City had copied the data electronically onto a flash drive or CD and allowed Mr. McCarthy first to inspect the data, according to section 13.03.subdivision 3(c), the City could have charged the actual cost fee, as pro-rated, for any of these data Mr. McCarthy wanted copied [printed]. (Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267597" title="04-038" target="_blank">04-038</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267451" title="10-007" target="_blank">10-007</a>.)</p> <p>Inspection of data is free. Because the 61 copies Mr. McCarthy requested were created from paper documents, the City can charge no more than $.25 per each of the 61 pages - a total of $15.25. Thus, the City's charge is not appropriate.</p> <br /> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. McCarthy raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City did not comply with Minnesota Statutes, Chapter 13, when it charged $265 to copy approximately 61 pages from the approximately 473 pages that the requestor inspected.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: November 16, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2674152666132665092668032666132022-01-18T19:35:59Z266258266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266863" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-10-27T15:14:43ZHas the City of North Saint Paul complied with Minnesota Statutes, Chapter 13, in denying access to data in an email?October 27, 2010; City of North Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On July 13, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated July 12, 2010, from John Fax. In his letter, Mr. Fax asked the Commissioner to issue an advisory opinion regarding his right to access certain data from the City of North Saint Paul. IPAD requested additional information, which Mr. Fax provided on September 7, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Walter Wysopal, City Manager, in response to Mr. Fax's request. The purpose of this letter, dated September 13, 2010, was to inform him of Mr. Fax's request and to ask him to provide information or support for the City's position. On September 29, 2010, IPAD received a response from Mr. Wysopal.</p> <p>A summary of the facts as Mr. Fax provided them is as follows. In a letter dated April 23, 2010, Mr. Fax requested certain data from the City. Of relevance here is his request for the following:</p> <p class="opinion_quote">any and all information [since March 1, 2010] related to written or oral communication between Mayor Mike Kuehn and Mr. John Oldendorf, President of the Gateway Trail Association, Lake Elmo, MN</p> <p>Communications between the City and Mr. Fax continued. At issue in this opinion, is an email the Mayor sent to Mr. Oldendorf. The City references this email in a May 27, 2010, letter to Mr. Fax:</p> <p class="opinion_quote">you were advised that certain correspondence between the Mayor and the other individuals is shielded from becoming public data under Minnesota Statute 13.601, Subd. 2. This statute classifies such correspondence between the Mayor and individuals as private data on individuals. </p> <p class="opinion_quote">The correspondence that you are seeking was an email between a private individual and the Mayor of North St. Paul, an elected official, on the Mayor's private email address. The specific correspondence was never shared with another elected official or city staff member. </p> <p>In his opinion request, Mr. Fax wrote:</p> <p class="opinion_quote">I feel the City is misinterpreting M.S. 13.601, Subd. 2, which they allege controls why this one e-mail I am seeking is not public information I highly disagree Furthermore, I am interested in finding out from the content of this e-mail, why the Gateway Trail Association changed its original position regarding a Conditional Use Permit ISD 622 it initially advocated against and then, almost immediately after receipt of the e-mail, advocated for it.</p> <hr /> <br /> <h2>Issue: <br /></h2> <p>Based on Mr. Fax's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Has the City of North Saint Paul complied with Minnesota Statutes, Chapter 13, in denying access to data in an email?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.601, subdivision 2, classifies correspondence data between individuals and elected officials: Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.</p> <p>Private data are data on individuals that are accessible to the data subject but not to the public. (Minnesota Statutes, section 13.02, subdivision 12.)</p> <p>In his comments to the Commissioner, Mr. Wysopal wrote:</p> <p class="opinion_quote">the nature of the communication as well as the substance and context need to be considered in determining its appropriate classification. In this particular situation, the correspondence was not composed on city letterhead did not purport to be a formal communication between the City and the association and was addressed to and from Mr. Oldendorf rather than to his non-governmental association or office. </p> <p class="opinion_quote">Under these circumstances the City determined that the requested correspondence was between the Mayor, an elected official, and Mr. Oldendorf, an individual.</p> <p>Before proceeding, it is important to point out that although Mayor Kuehn composed the email on something other than City letterhead and sent it using his private email account, as long as he wrote the email in his capacity as Mayor, the data in the email are government data. The City did not make any statements suggesting the content of the email is not related to Mayor Kuehn's duties as Mayor.</p> <p>The Legislature enacted the language in section 13.601, subdivision 2, in 1979. In classifying the data as private, the Legislature provided a mechanism by which an individual can correspond with his/her elected official on a matter that is personal to that individual. Some examples include correspondence between a parent and his school board member about an issue involving the parent's child, correspondence between a resident and her city council member about a neighborhood zoning matter, correspondence between a grandparent and his county board representative about the grandparent's desire to adopt his grandchild.</p> <p>The email in question is correspondence between Mayor Kuehn and Mr. Oldendorf. Although Mr. Oldendorf is an individual, the Commissioner does not believe the Legislature intended for the protection afforded under section 13.601, subdivision 2, to apply to an individual writing as a representative of an organization. First, and foremost, the classification of private applies to data on individuals (as opposed to data about organizations or businesses). See <em>International Brotherhood of Electrical Workers, Local No. 292 v. City of St. Cloud</em>, 765 N.W.2d 64 (Minn. 2009). It is unlikely that someone corresponding on behalf of an organization is writing about an issue as a private citizen and not about an issue related to the organization.</p> <p>(The Commissioner previously has opined that a government entity can protect correspondence between its elected officials and certain employees if the employees were writing as private citizens. However, if the employees were writing in their roles as employees, the entity cannot use section 13.601 to withhold the data. See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267479" title="07-004" target="_blank">Advisory Opinion 07-004</a>.)</p> <p>Second, if the Legislature intended the protection afforded under section 13.601, subdivision 2, to apply to data about organizations, it would have classified the data as nonpublic.</p> <p>The Commissioner has not seen the email in question. Based on the analysis above, if the correspondence between Mayor Kuehn and Mr. Oldendorf relates to an issue involving Mr. Oldendorf, as an individual, the data in the email can be protected by section 13.601, subdivision 2. If the correspondence relates to an issue involving an organization Mr. Oldendorf represents, such as the Gateway Trail Association, the data in the email cannot be protected under section 13.601, subdivision 2.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Fax raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>If the data in the email relate to an issue involving Mr. Oldendorf, as an individual, the City of North Saint Paul complied with Minnesota Statutes, Chapter 13, in denying access to the data.</p> <p>If the data in the email relate to an issue involving an organization Mr. Oldendorf represents, the City of North Saint Paul did not comply with Minnesota Statutes, Chapter 13, in denying access to the data.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: October 27, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2668632662683793082022-02-02T14:23:56Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266922" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-10-15T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to an investigation conducted by Minnesota Management and Budget: the investigative report and “supporting or underlying data for the report” about a complaint made against a former deputy commissioner of the Minnesota Department of Education? Does MMB’s obligation to provide the Office of the Legislative Auditor with a copy of the report affect the classification of the data described in Issue 1? October 15, 2010; Minnesota Management and Budget36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On August 24, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Tom J. Hanson, Commissioner of Minnesota Management and Budget (MMB.) In his letter, Commissioner Hanson asked the Commissioner (of Administration) to issue an advisory opinion regarding the classification of certain data MMB maintains. IPAD asked MMB to provide additional information, i.e., comments from the Office of the Legislative Auditor (OLA). Cecile Ferkul, Deputy Legislative Auditor, responded on August 25 and 26, 2010.</p> <p>The Commissioner also invited Tammy Pust, attorney for Chas Anderson, former Deputy Commissioner for the Minnesota Department of Education, to submit comments, which she did in a letter dated September 22, 2010.</p> <p>A summary of the facts follows. According to Commissioner Hanson:</p> <p class="opinion_quote">[MMB] has hired an outside investigator to develop facts and issue a report regarding a complaint made against Ms. Chas Anderson . . . . The complaint was made after Ms. Anderson had left state employment voluntarily but involved her activities while she was a deputy commissioner.</p> <p class="opinion_quote">The Office of the Legislative Auditor has requested a copy of the final report and MMB will provide it upon its completion pursuant to Minn. Stat. section 3.978, Subd. 2.</p> <p class="opinion_quote">Once the investigation is completed, this data appears to be classified as public pursuant to the public official clause of Minn. Stat. section 13.43, Subd. 2. . . . .</p> <p class="opinion_quote">MMB has advised Ms. Anderson's attorney of its opinion that the completed investigative report and supporting materials are public data.</p> <p>In her comments to the Commissioner, Ms. Pust wrote:</p> <p class="opinion_quote">Chas Anderson served as the Deputy Commissioner for the Minnesota Department of Education (MDE) from 2003 through June 4, 2010, on which date she voluntarily resigned her employment. As of that date, no complaint had been filed with MDE, MMB or any other state agency relative to Ms. Anderson's performance of her duties as a state employee.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Commissioner Hanson's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to an investigation conducted by Minnesota Management and Budget: the investigative report and supporting or underlying data for the report about a complaint made against a former deputy commissioner of the Minnesota Department of Education?</li> <li>Does MMB's obligation to provide the Office of the Legislative Auditor with a copy of the report affect the classification of the data described in Issue 1?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Personnel data are government data about an individual that an entity maintains because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.  Personnel data are classified at Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 classifies certain personnel data as public; pursuant to subdivision 4, all other personnel data are private.</p> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to an investigation conducted by Minnesota Management and Budget: the investigative report and supporting or underlying data for the report about a complaint made against a former deputy commissioner of the Minnesota Department of Education?</em></p> <p>MMB believes that the data related to the complaint about Ms. Anderson, as a former deputy commissioner, are public under section 13.43, subdivision 2(e), which provides, in relevant part:</p> <p class="opinion_quote">Notwithstanding paragraph (a), clause (5), upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources.</p> <p>Public official includes the head of a state agency and deputy and assistant state agency heads.</p> <p>Ms. Pust wrote that section 13.43, subdivision 2(e) is not applicable:</p> <p class="opinion_quote">By its express terms, this exception [to the presumption that personnel data are private unless specifically classified as public under section 13.43] only applies when one of two tests are met: either (1) there has been an investigation of a complaint or charge against a public official;' or (2) a public official resigns or is terminated from employment while the complaint or charge is pending.' Neither of these criteria are met in the present case.</p> <p class="opinion_quote">While MMB did conduct an investigation, it did not conduct an investigation against a public official.' Ms. Anderson was the deputy commissioner at MDE, and during her employment would have constituted a public official' for purposes of this exception. It is important to note, however, that the statute defines the head of a state agency and deputy agency heads' as public officials;' it does not include former agency or deputy agency heads within the statutory definition. Ms. Anderson was not a public official when the investigation was commenced, and is not now a public official. The fact that she was formerly a public official is irrelevant to the statutory language.</p> <p class="opinion_quote">The legislature certainly knew how to include former public officials within the Act's reach when they intended to do so. See Minn. Stat. section 13.43, Subd. 1 (reference to was an employee') and Minn. Stat. section 13.43, Subd. 2 (reference to current and former employees'). The legislature chose not to include former public officials in Subdivision 2(e). Because Ms. Anderson is not a current state employee, she is not a public official for purposes of this section of the MGDPA [Minnesota Statutes, Chapter 13.]</p> <p>As noted above, section 13.43 defines personnel data as data a government entity maintains because an individual  is or was an employee, applicant for employment, volunteer or independent contractor. Ms. Pust wrote that had the Legislature intended specifically to include former public officials in subdivision 2(e), it would have done so. The Commissioner acknowledges that section 13.43 could be clarified. However, she respectfully disagrees with Ms. Pust's position that the data in question are not classified under section 13.43, subdivision 2(e).</p> <p>All provisions of a statute must be given effect. (See Minnesota Statutes, sections 645.16 and 645.17.) Section 13.43, subdivision 2(e), provides an exception to the general rule, under subdivision 2(a)(5), which classifies personnel data related to complaints and charges about employees who are not public officials. By definition, the general rule applies to current and former employees, volunteers and independent contractors. The Commissioner believes therefore that section 13.43, subdivision 2(e), should be construed to include data about allegations made about public officials' actions while employed in public service, even if the complaint or charge was made after a public official left public employment.</p> <p>The subdivision 2(e) exception classifies as public more data about individuals in their roles as public officials than would be public under the general rule. If section 13.43, subdivision 2(e) did not apply to situations like this one, then the only data that would be public would be the existence of the complaint or charge, and the status (i.e., under investigation, sustained, dismissed, etc.) Details about the nature of the complaint against the former public official would never be public. (See section 13.43, subdivisions 2(a) 4 5 and 2(b).)</p> <p>In her comments to the Commissioner, Ms. Pust wrote:</p> <p class="opinion_quote">[Ms. Anderson] voluntarily terminated her employment on June 4, 2010, well before any complaint was made and well before any investigation was commenced. While the Legislature clearly intended to prevent high-ranking state employees from avoiding release of complaint findings merely by quitting their employment, that policy interest is not at all at issue in the present circumstances. Ms. Anderson clearly did not quit her employment to avoid disclosure of a complaint that she did not know about - and which did not even exist - at the time she terminated her employment.</p> <p>Regardless of whether Ms. Anderson could have anticipated this complaint, it is the Commissioner's understanding that, in general, the Legislature also did not intend that high-ranking state employees could avoid the public release of details of investigations into allegations simply by resigning before an anticipated complaint or charge is filed. To conclude otherwise would eviscerate the principle that actions public officials take during the course of their public employment are subject to public scrutiny, including when a complaint or charge is made about those actions after an official voluntarily resigns. (IPAD staff reviewed the recording of the May 8, 1995, Minnesota House floor debate of HF1473/SF1279, during which the 1995 amendment was introduced, discussed, and approved.)</p> <p>Accordingly, the data in the investigative report, along with supporting or underlying data, are presumptively public, pursuant to section 13.43, subdivision 2(e). However, it is likely that some of the data are not public, e.g., private data about confidential sources, other public employees, etcetera, which MMB would need to redact. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267552" title="96-002" target="_blank">Advisory Opinion 96-002</a>.)</p> <h2>Issue 2:</h2> <p><em>Does MMB's obligation to provide the Office of the Legislative Auditor (OLA) with a copy of the report affect the classification of the data described in Issue 1?</em></p> <p>Ms. Pust wrote:</p> <p class="opinion_quote">The MGDPA is clear that when one government agency disseminates data to another government agency, the data disseminated shall have the same classification in the hands of the entity receiving it as it had in the hands of the entity providing.' Minn. Stat. section 13.03, Subd. 4 (c). Therefore, because the subject data is private in the hands of MMB, it remains private if disseminated to the OLA.</p> <p class="opinion_quote">The OLA has no legal authority to release private personnel data. Minnesota law provides that the OLA is subject to the MGDPA and shall protect from unlawful disclosure data classified as not public.' Minn. Stat. section 3.979, Subd. 1. Data collected by the OLA for purposes of conducting an audit are not public during the course of the audit, and upon release of a final report by the legislative auditor, data relating to an audit are public except data otherwise classified as not public.' Minn. Stat. section 3.979, Subd. 3 (a) (emphasis added.) Because the subject data is classified as private data for the reasons set forth above, and because the data's classification does not change by virtue of the fact that it is disseminated to the OLA, the data remains private and not releasable in the hands of the OLA.</p> <p>In her comments, Ms. Ferkul stated: ;the OLA does not anticipate that the public release of the investigative report related to Chas Anderson would jeopardize any investigation that the OLA may undertake.</p> <p>Thus, MMB's obligation to provide OLA a copy of the report does not affect the classification of the data in question.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issues Commissioner Hanson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, the following data related to an investigation conducted by Minnesota Management and Budget: the investigative report and supporting or underlying data for the report about a complaint made against a former deputy commissioner of the Minnesota Department of Education are presumptively public. MMB may need to redact not public data from the final investigative report.</li> <li>MMB's obligation to provide the Office of the Legislative Auditor with a copy of the report does not affect the classification of the data described in Issue 1.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: October 15, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2669222668732022-01-18T19:35:58Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266984" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-09-27T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Independent School District 742, and the Bureau of Mediation Services (BMS): “the financial spreadsheet that shows the total cost of the mediator’s proposal and any documents in the District’s possession that show what other language agreements have been made?September 27, 2010; School District 742 (St. Cloud)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On August 20, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Kevin J. Rupp and Amy E. Mace, attorneys for Independent School District 742, St. Cloud. In their letter, Mr. Rupp and Ms. Mace asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD requested additional information, i.e., comments from Steven G. Hoffmeyer, Commissioner of the Bureau of Mediation Services (BMS), which he provided on August 25, 2010.</p> <p>The Commissioner also invited Dave Aeikens, reporter for the <em>St. Cloud Times</em>, to submit comments. Mark Anfinson, attorney for the <em>Times</em>, did so, in a letter dated September 22, 2010.</p> <p>A summary of the facts follows. According to Mr. Rupp and Ms. Mace, the District and its teacher's union have been negotiating the terms of the 2009-2011 contract since August of 2009. The union requested mediation from BMS; the first mediation session was held April 9, 2010. At the time of this opinion request, the most recent mediation session was August 17, 2010. According to the District, on August 18, 2010, Mr. Aeikens requested access to "the financial spreadsheet that shows the total cost of the mediator's proposal and any documents in the District's possession that show what other language agreements have been made."</p> <p>Mr. Rupp and Ms. Mace wrote:</p> <p class="opinion_quote">The newspaper noted that it agreed that the documents requested are nonpublic in the possession of BMS under law, but asserted that they were public in the District's possession.</p> <p class="opinion_quote">All of the data requested has been received by Mediator Stockstead during the course of providing mediation services to the parties to a labor dispute. In addition, the BMS is currently maintaining the requested data as mediation remains open until the parties have ratified a contract.</p> <p class="opinion_quote">The School District has determined that the data requested are classified as protected nonpublic data pursuant to Minnesota Statute Section 13.7908, subdivision 2.</p> <p>In his comments, Commissioner Hoffmeyer confirmed that BMS "has received and is maintaining" the data at issue.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Rupp and Ms. Mace's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Independent School District 742, and the Bureau of Mediation Services (BMS): "the financial spreadsheet that shows the total cost of the mediator's proposal and any documents in the District's possession that show what other language agreements have been made?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Pursuant to Minnesota Statutes, section 13.7908, subdivision 2:</p> <p class="opinion_quote">Data received or maintained by the staff or commissioner of the Bureau of Mediation Services during the course of providing mediation services to the parties to a labor dispute under chapter 179 are classified as protected nonpublic data or confidential data on individuals, except to the extent the commissioner of the Bureau of Mediation Services determines access to data is necessary to fulfill the requirements of section 179A.16 or to identify the general nature of or parties to a labor dispute.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/266898" title="10-015" target="_blank">Advisory Opinion 10-015</a>, the Commissioner addressed this issue as it relates to the discussion in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267559" title="06-015" target="_blank">Advisory Opinion 06-015</a> (Note: Minnesota Statutes, section 13.79, subdivision 2(b) was recodified to section 13.7908 in 2007):</p> <p class="opinion_quote">However, the Commissioner believes an argument can be made that the Council appropriately withheld the data in the rejected contract pursuant to section 13.79. In his comments to the Commissioner, Mr. Grossman wrote:</p> <p class="opinion_quote">... At the time the Star Tribune requested the rejected contract proposal on January 17 or 18, 2006, the requested data fell squarely within the definition of mediation data as set forth in Minn. Stat. section 13.79, subd. 2(b). The Metropolitan Council and the Transit Union submitted this labor dispute to the Bureau of Mediation Services and were working with their appointed mediator ....</p> <p class="opinion_quote">Section 13.79, subdivision 2(b), appears to classify only those data maintained by the Bureau of Mediation Services. Such a reading, however, creates an absurd result, which, pursuant to Minnesota Statutes, section 645.17, is not to be presumed. If data relating to a mediation conducted by BMS are protected at BMS but not protected in the agency that created the data, the purpose in classifying the data at BMS is frustrated.</p> <p>Mr. Anfinson, on behalf of the <em>Times</em>, wrote:</p> <p class="opinion_quote">As the Commissioner implicitly held in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/266898" title="10-015" target="_blank">advisory opinion #10-015</a> . . . the boundaries of section 13.79, subd. 2 (b) are relatively narrow. They encompass only data 'received or maintained' by the [BMS] itself. It would be extremely unfortunate if a future opinion should hold that this statute, despite its express and limiting language, in fact extended to records created by and/or in the possession of local school districts.</p> <p>The Commissioner acknowledges Mr. Anfinson's position, but nonetheless, the data in question are "[d]ata received or maintained by the staff or commissioner of the Bureau of Mediation Services during the course of providing mediation services to the parties to a labor dispute," and as such, regardless where or by whom the data were created, are classified under section 13.7908. As the Commissioner concluded in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/266898" title="10-015" target="_blank">10-015</a>:</p> <p class="opinion_quote">In addition, in cases in which data are classified under section 13.7908, to the extent that BMS disseminates those data to an entity, it appears that the data are classified at that entity the same way they are classified at BMS. (See Minnesota Statutes, section 13.03, subdivision 4 (c).)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Rupp and Ms. Mace raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The following data maintained by Independent School District 742, and the Bureau of Mediation Services (BMS): "the financial spreadsheet that shows the total cost of the mediator's proposal and any documents in the District's possession that show what other language agreements have been made" are classified as protected nonpublic data, pursuant to section 13.7908.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 27, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2669842664642022-01-18T19:35:53Z266258266282266283266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267526" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-09-23T15:14:43ZDid the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the following three meetings: (1) Council Workshop held on February 1, 2010; (2) Council Workshop held on March 3, 2010; and (3) Council Worksession held on April 12, 2010? Did the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the special meeting (City Council Workshop) held on June 28, 2010?September 23, 2010; Montrose City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On July 26, 2010, the Information Policy Analysis Division (IPAD) received correspondence from Evan Siljander. In his email, Mr. Siljander asked the Commissioner to issue an advisory opinion related to whether the Montrose City Council provided appropriate notice for several different meetings. Mr. Siljander submitted the $200 fee required by Minnesota Statues, section 13.072.</p> <p>IPAD, on behalf of the Commissioner, wrote to Andrew Kauffman, President of the City Council, in response to Mr. Siljander's request. The purpose of this letter, dated August 6, 2010, was to inform him of Mr. Siljander's request and to ask him to provide information or support for the City Council's position. On August 18, 2010, IPAD received a response, dated August 16, 2010, from Barbara Thwing-Swanson, Administrator/Clerk/Treasurer for the City of Montrose.</p> <p>A summary of the facts as Mr. Siljander provided them is as follows. His primary concern is that, with regard to the notices the City Council provided for several meetings, the City Council did not describe the purpose of the meetings.</p> <p>Mr. Siljander attached several documents to his opinion request. One was a document listing meetings for the month of February 2010, one was a document listing meetings for the month of March 2010, and one was a document listing meetings for the month of April 2010.</p> <p>Mr. Siljander asserted that the "Council Workshop" meeting held on February 1, the "Council Workshop" held on March 3, and the "Council Worksession" held on April 12, 2010, were not noticed properly if, as the City stated, they were "continued" meetings. (In a June 1, 2010, email, the City wrote to Mr. Siljander, "We do not believe any violation occurred because the workshops qualify under Minn. Stat. 13D.04, Subd. 4 as meetings that were continued from the regular City Council meeting.")</p> <p>Mr. Siljander also asserted that the City did not provide proper notice for a special meeting held June 28, 2010. Mr. Siljander attached a copy of a document entitled, "Special Meeting Notice." It states, "The Montrose City Council will hold a workshop on Monday, June 28, 2010 at 6:00 pm at City Hall. Purpose: Financial Review [on next line] Training [on next line] Any Other Business that May Arise."</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Siljander's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the following three meetings: (1) Council Workshop held on February 1, 2010; (2) Council Workshop held on March 3, 2010; and (3) Council Worksession held on April 12, 2010?</li> <li>Did the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the special meeting (City Council Workshop) held on June 28, 2010?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <br /> <h2>Issue 1:</h2> <p><em>Did the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the following three meetings: (1) Council Workshop held on February 1, 2010; (2) Council Workshop held on March 3, 2010; and (3) Council Worksession held on April 12, 2010?</em></p> <p>There is no dispute that meetings of the Montrose City Council, and workshops and work sessions of the City Council are subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.</p> <p>In her comments to the Commissioner, Ms. Thwing-Swanson wrote:</p> <p class="opinion_quote">Meetings are posted at city hall and three other locations within the city as well as on the city's web site. A workshop is posted with the date, time and location; there is no action taken. In 2008 the city switched to posting all city meetings (including regular city council meetings) at the beginning of each month.</p> <p class="opinion_quote">In 2010 Mr. Siljander decided the manner in which we post meetings was unacceptable because the City was not posting the "purpose" of the council workshops. We did not believe that necessary because the workshops do not have one inclusive purpose, the purpose of the workshops is to address issues that come up at city council meetings and require additional discussion, research or review. Workshops cover a variety of information and are always open to the public. The agenda for the workshop is available in advance of the workshop itself to anyone who requests it as well as anyone in attendance.</p> <p class="opinion_quote">However, due to [Mr. Siljander's] repeated complaints we again changed the way we post meetings. In July 2010 we reverted to posting each meeting separately. We attempt to list all of the topics that might come up at the workshops, but that isn't always possible because we post workshops or special meetings at least a week prior to the meeting giving residents an opportunity to attend.</p> <p>Chapter 13D provides specific requirements for giving notice of meetings. The notice required depends upon the type of meeting. The purpose of giving notice of meetings is to give members of the public an opportunity, ahead of time, to decide whether they wish to attend a meeting.</p> <p>Regular meetings are, as the name suggests, regular meetings of a public body or meetings of committees the public body determines will meet regularly. A public body must keep a schedule of its regular meetings on file "at its primary offices." Meetings that are not regular or emergency meetings are special meetings and require that a public body provide a more detailed notice that includes posting the purpose of the meeting. (See Minnesota Statutes, section 13D.04, subdivisions 1, and 2, Advisory Opinions <a title="04-057" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267582" target="_blank">04-057</a> and <a title="10-013" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267304" target="_blank">10-013</a>.)</p> <p>Typically, a public body sets its schedule of regular meetings on an annual basis. If the public body creates a new committee that will meet regularly, the committee's first meeting would be a special meeting at which the group would determine its regular meeting schedule.</p> <p>Although Ms. Thwing-Swanson describes the City's process for posting meetings, pursuant to Chapter 13D, posting is not a substitute for the City maintaining a schedule of its regular meetings. The monthly meeting postings for the three meetings in question (both Mr. Siljander and Ms. Thwing-Swanson submitted copies) do not list a purpose for the meetings. To demonstrate that the meetings were regular meetings and did not require postings that included purpose, Ms. Thwing-Swanson could have provided a schedule of the City Council's regular meetings; however, she did not do so. Thus, the Commissioner is left to conclude that the meetings were special meetings and that the City Council did not provide the notice required by section 13D.04, subdivision 2.</p> <p>Because the City, in a June 2010 email to Mr. Siljander, raised the issue of whether the meetings were continued meetings, the Commissioner will comment. Pursuant to Minnesota Statutes, section 13D.04, subdivision 4, if a meeting and remaining agenda items (or discussion about a specific item) are to be continued at another meeting, the public body must establish the time and place, and record that information in the minutes. IPAD reviewed the minutes from the City Council meeting that preceded each of the meetings in question; there was no discussion about continuing the meetings or agenda items. If a public body does not record that information, as the City Council did not in this case, the new meeting is a special meeting and the public body must provide the appropriate notice as set forth in Minnesota Statutes, section 13D.04, subdivision 2.</p> <h2>Issue 2:</h2> <p><em>Did the Montrose City Council comply with Minnesota Statutes, Chapter 13D, in providing notice for the special meeting (City Council Workshop) held on June 28, 2010?</em></p> <p>Minnesota Statutes, section 13D.04, subdivision 2, describes the notice a public body must provide when it holds a special meeting. One of the requirements is that the notice must include the purpose of the meeting. (Minnesota Statutes, section 13D.04, subdivision 2(a).) As discussed above in the "Facts" section, the stated purpose for the June 28, 2010, meeting was, "Purpose: Financial Review [on next line] Training [on next line] Any Other Business that May Arise."</p> <p>The Commissioner addressed a similar issue in <a title="07-014" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267355" target="_blank">Advisory Opinion 07-014</a> in which a public body held a special meeting and the notice contained the statement, "Other Legal issues may be discussed." The Commissioner wrote:</p> <p class="opinion_quote">The Commissioner has previously opined that for the notice to be effective and meet the direction of the Supreme Court in [Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002)], the notice must provide detail about the purpose of the meeting. See Advisory Opinions <a title="04-004" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267471" target="_blank">04-004</a> and <a title="04-057" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267582" target="_blank">04-057</a>.</p> <p class="opinion_quote">Specifically, the Board is limited to the topics listed in the notice of special meeting. The phrase other legal issues does not give notice that the Board would, and did, discuss a traffic issue, enforcement of a zoning provision, the duties of the planning commission, review of permits issued under the zoning code and cutting weeds.</p> <p class="opinion_quote">Construing the requirements in section 13D.04, subdivision 2 in favor of public access, the notice for the September 13th special meeting was not sufficient and the Board was not in compliance with section 13D.04, subdivision 2.</p> <p>Thus, for the reasons the Commissioner discussed in <a title="07-014" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267355" target="_blank">07-014</a>, the notice the Montrose City Council provided for the June 28, 2010, special meeting was not sufficient. If the City Council was planning to discuss other business at the meeting, it needed to specifically identify the topic(s).</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Siljander raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Montrose City Council did not comply with Minnesota Statutes, Chapter 13D, in providing notice for the following three meetings: (1) Council Workshop held on February 1, 2010; (2) Council Workshop held on March 3, 2010; and (3) Council Worksession held on April 12, 2010. These meetings apparently were special meetings and, as such, the notice for each should have included the meeting purpose.</li> <li>The Montrose City Council did not comply with Minnesota Statutes, Chapter 13D, in providing notice for the special meeting (City Council Workshop) held on June 28, 2010.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 23, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2675262668292670242022-01-18T19:35:52Z266258266262266263266358266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267443" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-09-20T15:14:43ZDid School District 547, Parkers Prairie, comply with Minnesota Statutes, Chapter 13, in responding to a request to gain access to the tape recording of a closed meeting?September 20, 2010; School District 547 (Parkers Prairie)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On July 23, 2010, the Information Policy Analysis Division (IPAD) received a letter from Jacquelyn Wehking and Jennifer Marquardt, co-publishers of <em>The Parkers Prairie Independent</em> newspaper. In the letter, they asked the Commissioner to issue an advisory opinion regarding their access to certain data from School District 547, Parkers Prairie.</p> <p>IPAD, on behalf of the Commissioner, wrote to Kent Baldry, who was believed to be the responsible authority, in response to the request from Ms. Wehking and Ms. Marquardt. The purposes of this letter, dated August 9, 2010, were to inform him of the request and to ask him to provide information or support for the District's position. On September 1, 2010, the Superintendent, Thomas Ames, provided a response. (Kent Baldry was the previous Superintendent.)</p> <p>A summary of the facts as Ms. Wehking and Ms. Marquardt provided them is as follows. In their opinion request, Ms. Wehking and Ms. Marquardt wrote:</p> <p class="opinion_quote">[At the February 16, 2010, meeting] the board requested to close the meeting under section 13.05, subd. 3(a), stating it wished to evaluate Superintendent Kent Baldry. [He] was asked to not be present and left the meeting room with the rest of the public. The board re-opened the meeting at 9:30 p.m. The board summarized its evaluation conducted during the closed meeting, offering only positive remarks regarding Superintendent Baldry. But immediately following the summary, [a Board Member] made a motion to terminate Superintendent Baldry's contract, which didn't expire until the end of the 2011 school year. No discussion whatsoever was held and a roll call vote immediately was taken. All members voted to approve the motion.</p> <p>In a letter dated March 1, 2010, Ms. Wehking and Ms. Marquardt requested data from the District:</p> <p class="opinion_quote">[On February 16, 2010, the Board] requested to close the regular school board meeting to evaluate Superintendent Kent Baldry. By Minnesota Statute, a recording of the closed meeting was required. [Pursuant to Minnesota Statutes, Chapter 13], the subject (Superintendent Kent Baldry) of the data (recorded tape) is the only party that has access and to whom the data is now available.</p> <p class="opinion_quote">As you can see by the letter enclosed, Superintendent Kent Baldry has given the <em>Parkers Prairie Independent, LLC</em> consent to listen to the tape of the closed meeting evaluation. We request reviewal of the tape.</p> <p>In their opinion request, Ms. Wehking and Ms. Marquardt wrote:</p> <p class="opinion_quote">[Board Chairperson Steven Inwards] came to <em>The Independent</em> in person [on March 5] and stated that our request would be denied on Minnesota School Board Association (MSBA) policy.Beyond this, he never provided any specific legal basis for refusing our requests to listen to the tape.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Wehking and Ms. Marquardt's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did School District 547, Parkers Prairie, comply with Minnesota Statutes, Chapter 13, in responding to a request to gain access to the tape recording of a closed meeting?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, Chapter 13, a government entity must respond to requests for government data. In responding to a request, the entity must provide the data, advise that the data are classified such that the requestor is denied access, or inform the requestor that the data do not exist.</p> <p>Ms. Wehking and Ms. Marquardt wrote that the Board closed the February 16, 2010, meeting to evaluate then-Superintendent Baldry. (Closing a meeting for this reason is allowable under Minnesota Statutes, Chapter 13D.05, subdivision 3(a).)</p> <p>On February 18, 2010, Ms. Wehking and Ms. Marquardt obtained written consent from then-Superintendent Baldry which gave the District permission to release to the newspaper private data in the audio recording of which he is the subject. (As the Commissioner discussed in <a title="10-001" href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267745" target="_blank">Advisory Opinion 10-001</a>, the classification of data in audio recordings of closed meetings depends upon how the data are classified pursuant to Chapter 13. In the current situation, given that the Board closed the meeting to evaluate then-Superintendent Baldry's performance, portions of the tape very likely contain private data about him.</p> <p>Pursuant to Minnesota Statutes, section 13.04, subdivision 3, a government entity must respond within ten business days when a data subject has given consent to release his/her private data to another individual.</p> <p>On March 1, 2010, Ms. Wehking and Ms. Marquardt made a written request to the District for the tape and attached a copy of then-Superintendent Baldry's consent form. Ms. Wehking and Ms. Marquardt wrote in their opinion request:</p> <p class="opinion_quote">[Board Chair Steven Inwards] came to the [newspaper] in person the morning of Friday, March 5th and stated that our request would be denied he never provided any specific legal basis for refusing our requests to listen to the tape.</p> <p class="opinion_quote">On April 16, 2010 the Board received a second request in writing from our attorney. On Saturday, April 17, 2010 we were again told by [Board Chair Inwards] that we would not be allowed to listen to the tape. [Board Chair Inwards] told us that the whole board agreed no access would be granted without a court order.</p> <p>(Ms. Wehking and Ms. Marquardt did not provide the Commissioner with any written documentation of the District's denial and the District, in its comments to the Commissioner, did not refute the facts as Ms. Wehking and Ms. Marquardt presented them.)</p> <p>In his comments to the Commissioner, Superintendent Ames wrote:</p> <p class="opinion_quote">On July 2, 2010, I began serving as the superintendent of [the District].</p> <p class="opinion_quote">On [August 26, 2010, the Board] voted to allow Jacquelyn Wehking and Jennifer Marquardt consent to listen to the tape of the closed meeting in question.</p> <p>Ms. Wehking and Ms. Marquardt asked the Commissioner to comment on whether the District responded appropriately to their March 1, 2010, data request. Given that the District did not provide the statutory basis upon which it denied access to the data and did not release the data even though the newspaper obtained consent from then-Superintendent Baldry, the District's response was not in compliance with Chapter 13. Based on the information Superintendent Ames submitted, it appears the District has changed is previous position and is willing to provide Ms. Wehking and Ms. Marquardt with the data they requested.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Wehking and Ms. Marquardt raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>School District 547, Parkers Prairie, did not comply with Minnesota Statutes, Chapter 13, in responding to a March 1, 2010, request to gain access to the tape recording of a closed meeting for the following reasons: (1) the District did not provide the statutory basis for denying access to the data; and (2) the District did not release the data even though the newspaper obtained written consent for the release from then-Superintendent Baldry.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 20, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2674432665012667132022-01-18T19:35:51Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267529" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-09-14T15:14:43ZDid the City of Fergus Falls comply with Minnesota Statutes, Chapter 13 and Minnesota Statutes, section 15.17, in responding to a data request for data on individuals and corporations that have made contributions or pledges toward the Fergus Falls Community Arena and the amounts they have contributed or pledged?September 14, 2010; City of Fergus Falls36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong> <br /></p> <h2>Facts and Procedural History:</h2> <p>On May 27, 2010, the Information Policy Analysis Division (IPAD) received a letter from Matt Von Pinnon, then-editor of <em>The Forum</em> newspaper. In his letter, Mr. Von Pinnon asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data related to a new City of Fergus Falls ice arena. IPAD requested additional information which Mila Koumpilova, current editor of <em>The Forum,</em> provided on July 28, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Mark Sievert, Administrator of the City, in response to Ms. Koumpilova's request. The purposes of this letter, dated August 6, 2010, were to inform him of Ms. Koumpilova's request and to ask him to provide information or support for the City's position. The City did not provide a response.</p> <p>A summary of the facts as Ms. Koumpilova provided them is as follows. In his May 27, 2010, letter to the Commissioner, Mr. Von Pinnon wrote:</p> <p class="opinion_quote">Last year, the Fergus Falls City Council approved building a new ice arena in town - a project that would combine roughly $4 million of public funding and about $3 million in private donations, in addition to $1.6 million in land and equipment donated by the Fergus Falls Public Schools. The City will own, operate and maintain the new facility.</p> <p class="opinion_quote">The City has since signed an agreement with the [Fergus Falls 544 Education Foundation], a non-profit 501(c)(3) organization, to collect pledges and donations toward the arena project on behalf of the City. The Foundation is briefing the City on the overall amount of pledges and donations collected, but it is not disclosing information about the identities of contributors or the size of their pledges or donations.</p> <p>(Mr. Von Pinnon provided to the Commissioner a copy of the agreement, which the parties signed in January 2010.)</p> <p>In a letter dated April 8, 2010, <em>The Forum</em> made a data request to the Foundation:</p> <p class="opinion_quote">I am requesting a list of individuals and corporations that have made contributions or pledges toward the Fergus Falls Community Arena and the amounts they have contributed or pledged.</p> <p class="opinion_quote">We believe the documents requested are public records because the Education Foundation has a written agreement with the City of Fergus Falls, a public entity, to collect pledges on its behalf. The relevant Minnesota statute is 13.05, subdivision 11.</p> <p>The Foundation responded on April 15, 2010:</p> <p class="opinion_quote">At this time, the information requested is private information and the Foundation needs to respect the private nature of the information held by it.</p> <p class="opinion_quote">The Foundation is a non-profit 501(c)(3) organization, and is not subject to [Minnesota Statutes, Chapter 13]. The [Foundation] is not performing any governmental function, but instead is simply serving as a facilitator for collections of private donations, which are solicited by the Fergus Falls Ice Arena Fundraising Committee and transferred to the City of Fergus Falls.</p> <p>At IPAD's request, <em>The Forum</em> then requested the same data from the City. Ms. Koumpilova requested the data in a letter dated June 24, 2010. She wrote, "The agreement between the [Foundation], the Fergus Falls Ice Arena Fundraising Committee and the City of Fergus Falls states it is an obligation of the [Foundation] to 'provide monthly information to the Committee and the City as to what funds have been received and by whom.'"</p> <p>In response, on June 28, 2010, the City provided a print-out for the period 1/1/2007 - 6/25/2010 that lists "the contributions and donations from private sources." The City also provided copies of the "actual checks the City received in conjunction with these donations." Of the copies of eight checks the City provided, three are from a specific charitable foundation, and the rest are from the Foundation. The City's attorney wrote, "This is the extent of the data that is in the City's possession."</p> <p>In her July 28, 2010, letter to the Commissioner, Ms. Koumpilova wrote, "As you will see from the documents enclosed, the City provided copies of checks that merely listed the [Foundation.] Again, we feel the names of individual donors and the amounts they have pledged or contributed should be made available to the public."</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Koumpilova's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Fergus Falls comply with Minnesota Statutes, Chapter 13 and Minnesota Statutes, section 15.17, in responding to a data request for data on individuals and corporations that have made contributions or pledges toward the Fergus Falls Community Arena and the amounts they have contributed or pledged?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>According to the agreement, the Foundation is a not-for-profit corporation registered as a 501(c)(3) with the Internal Revenue Service. Generally, such organizations and their data are not subject to the requirements of Chapter 13 except in situations where they have a contractual relationship with a government entity.</p> <p>Minnesota Statutes, section 13.05, subdivision 11, states:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>Here, the City and the Foundation entered into an agreement in January 2010. The obligations of the Foundation include:</p> <p class="opinion_quote">- Provide for an escrow account on behalf of the City to hold directed fundraising monies in the type and place as directed by the Committee.</p> <p class="opinion_quote">- Deposit monies raised directly by the Committee or monies specifically designated for the purpose of building a new ice arena located in Fergus Falls, Minnesota, into this account as the funds are received.</p> <p class="opinion_quote">- Provide monthly information to the Committee and City as to what funds have been received and by whom.</p> <p>(The Committee is the group appointed by the Foundation as its non-exclusive licensee to use the name and logo of the [Foundation] in connection with the administration of the fundraising efforts for the term of this agreement.</p> <p>The obligations of the City include:</p> <p class="opinion_quote">- Receive monies from the [Foundation] on a monthly or more frequent basis for the purpose of providing funding for development, construction and maintenance of a new ice arena facility in Fergus Falls, Minnesota.</p> <p class="opinion_quote">- Oversee the use of those funds and financing, upon the conditions satisfactory to the City and in accordance with the applicable law, for the purpose of a new ice arena facility in Fergus Falls, Minnesota.</p> <p>In soliciting and collecting contributions for the new arena that the City will own, operate, and maintain, the Foundation (and its committee) is performing a function that the City otherwise would have to undertake itself. Therefore, pursuant to section 13.05, subdivision 11, the related data are government data and, as such, are subject to the requirements of Minnesota Statutes, Chapter 13 - regardless of whether the City or the Foundation maintains the data.</p> <p>Pursuant to Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>The Commissioner notes that Minnesota Statutes, section 13.792, classifies, as not public, certain gift data maintained by several specific organizations, i.e., the Minnesota Zoological Garden, the University of Minnesota, the Minnesota State Colleges and Universities, the Twin Cities Regional Parks Foundation, and State Services for the Blind. However, the City of Fergus Falls is not one of the entities that has data classified by section 13.792.</p> <p>Minnesota Statutes, section 15.17, requires that government entities create and maintain records that document their official activities. In its June 28, 2010, response to <em>The Forum's</em> data request, the City appeared to be stating it did not have <em>in its possession</em> a list of the individuals and corporations that have made contributions or pledges toward the Arena and the amounts they have contributed or pledged. This raises two issues. First is that, in the agreement, one of the obligations of the Foundation is to "provide monthly information to the City as to what funds have been received <em>and by whom</em>." [Emphasis added.] Thus, based on the agreement, it appears the City should maintain the data.</p> <p>Second, even if the Foundation has not provided to the City the names of the contributors and amounts pledged and contributed, under section 15.17, these data are records "necessary to a full and accurate knowledge of [the entity's] official activities" and, as such, should be maintained by either the City or the Foundation (on behalf of the City). Therefore, even if the City is not maintaining the data, the City must be able to retrieve the data from the Foundation or the Foundation, upon request, must provide the data to a data requestor.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Koumpilova raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Fergus Falls did not comply with Minnesota Statutes, Chapter 13 and Minnesota Statutes, section 15.17, in responding to a data request for data on individuals and corporations that have made contributions or pledges toward the Fergus Falls Community Arena and the amounts they have contributed or pledged.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M.Reger <br /> Commissioner</p> <p class="date">Dated: September 14, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2675292662802663722663732663742022-01-18T19:35:45Z266258266296266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266763" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-07-01T15:14:43ZDid School District 47, Sauk Rapids-Rice, comply with Minnesota Statutes, Chapter 13, in responding to a January 10, 2010, request for a listing of outside consulting activities in which the superintendent has engaged over the past ten years?July 1, 2010; School District 47 (Sauk Rapids-Rice)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On May 6, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated May 3, 2010, from Jeanene Kern. In her letter, Ms. Kern asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from School District 47, Sauk Rapids-Rice.</p> <p>IPAD, on behalf of the Commissioner, wrote to Greg Vandal, District Superintendent, in response to Ms. Kern's request. The purposes of this letter, dated May 24, 2010, were to inform him of Ms. Kern's request and to ask him to provide information or support for the District's position. On June 9, 2010, IPAD received a response, dated same, from Michael Waldspurger, an attorney representing the District.</p> <p>A summary of the facts as Ms. Kern provided them is as follows. In a January 10, 2010, email, Ms. Kern wrote to the District Board Chair, Robyn Holthaus:</p> <p class="opinion_quote">It is my understanding that outside consulting activities conducted by the superintendent must be approved by the board. I am also aware that the superintendent has engaged in outside consulting activities that have been approved by you, the chairman of the board, rather than through full board approval. Because of the lack of transparency of this alternative approval process, I am unable to identify outside consulting activities through the official records of the board.</p> <p class="opinion_quote">Therefore, I am requesting a complete listing of outside consulting activities in which the superintendent has engaged over the past 10 years including but not limited to those activities that you or a past chairperson has approved personally, or through full board approval or that have not been approved by you or the board, or any other outside activities involving fees, honoraria or other benefits of value such as travel reimbursements.</p> <p>Ms. Holthaus responded on January 16, 2010:</p> <p class="opinion_quote">While Board chairs, have per our agreement with Superintendent Vandal, provided verbal permission to him when he has occasionally done such work, no written record exists of those authorizations. As such, I am unable to provide what you request.</p> <p>To her opinion request, Ms. Kern attached a copy the Superintendent's contract. Of relevance here, is section IX (1.), <em>Outside Activities</em>, which states:</p> <p class="opinion_quote">While the Superintendent shall devote full time and due diligence to the affairs and activities of the School District, the Superintendent may serve as a consultant to other School Districts or educational agencies, lecture, engage in writing and speaking activities, and engage in other activities if such activities do not impede the Superintendent's ability to perform the duties of the superintendency. <em>The Superintendent shall not engage in other employment, consultant service, or other activity for which a salary, fee, or honorarium is paid, without prior approval of the School Board.</em> [Emphasis added.]</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Kern's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did School District 47, Sauk Rapids-Rice, comply with Minnesota Statutes, Chapter 13, in responding to a January 10, 2010, request for a listing of outside consulting activities in which the superintendent has engaged over the past ten years?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, a government entity must respond to requests for government data. In responding to a request, the entity must provide the data, advise that the data are classified such that the requestor is denied access, or inform the requestor that the data do not exist.</p> <p>In addition, Minnesota Statutes, section 15.17, requires government entities to create and maintain records that document their official activities. Pursuant to Minnesota Statutes, section 138.17, a government entity must keep official records for the time period prescribed in the entity's records retention schedule.</p> <p>In his comments to the Commissioner, Mr. Waldspurger wrote:</p> <p class="opinion_quote">In response the District truthfully informed Ms. Kern that it did not maintain any government data that fell within the scope of her request. </p> <p class="opinion_quote">Ms. Kern asserts that the District was obligated to create and preserve a record of Superintendent Vandal's "official business" of the District because his employment contract with the District stated that he could not engage in ["employment, consultant service without prior approval of the School Board."].</p> <p>Mr. Waldspurger, discussing section 15.17, wrote, "The statute does not require school officials to create or preserve records relating to their private, personal, or other outside activities."</p> <p>Mr. Waldspurger also stated:</p> <p class="opinion_quote">Through their conduct, the parties to the contract - Superintendent Vandal and the District's School Board - interpreted Section IX of the contract to mean that Superintendent Vandal was required to obtain approval from the Board Chair rather than the Board as a whole. </p> <p class="opinion_quote">The Board never took any action to approve or deny a request from Superintendent Vandal to engage in ["employment, consultant service."]. Because the Board never took any official action relative to a request by Superintendent Vandal to engage in outside consulting activities, the Board had no obligation to create any records under [Minnesota Statutes, Chapter 13D, the Open Meeting Law].</p> <p>The issue before the Commissioner is whether the District responded appropriately to Ms. Kern's request for data. The District apparently has neither data listing any outside consulting activities in which the Superintendent has engaged nor data documenting decisions the board or board chair made to approve or deny such a request from the Superintendent. Thus, while it is technically correct that the District has no data responsive to the request, because of the interplay between section 15.17 and Minnesota Statutes, section 13.03, there is a question as to whether the District should maintain such data. As the Commissioner discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267846" title="08-026" target="_blank">Advisory Opinion 08-026</a>:</p> <p class="opinion_quote">Section 15.17, subdivision 4, states that access to records containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.</p> <p>The contract between the Superintendent and the District states that the School Board must act (by denying or approving the request) prior to the Superintendent accepting outside work (consulting, etc.), for which he will be paid. Such a determination is an official action and should be documented in some manner. In addition, if, as Ms. Holthaus and Mr. Waldspurger state, the Board gave approval to the Board Chair to make such determinations, there should be documentation of this action as well as documentation of the Board Chair's decisions regarding any requests the Superintendent has made to take on outside paid work. The data documenting these official actions are official records and, as such, the District must maintain them for the time period prescribed in the District's retention schedule. Because the District did not create records that should exist, it is unable to appropriately respond to Ms. Kern's data request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Kern raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Minnesota Statutes, sections 15.17 and 138.17 require that School District 47, Sauk Rapids-Rice, create and maintain data documenting its official actions. The District did not do so; therefore, it is not in compliance with sections 15.17 and 138.17. In addition, because Ms. Kern's right to access government data under Minnesota Statutes, Chapter 13, cannot be realized if the District did not create and maintain data as required, the District did not comply with Chapter 13 in responding to her data request.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: July 1, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2667632666472022-01-18T19:35:44Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266834" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-06-01T15:14:43ZDid the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for data from the City’s Computer-Aided Dispatch system?June 1, 2010; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History:</h2> <p>On April 13, 2010, the Information Policy Analysis Division (IPAD) received a letter dated March 29, 2010, from Paul Hannah, on behalf of the St. Paul Pioneer Press. In his letter, Mr. Hannah asked the Commissioner to issue an advisory opinion regarding the Pioneer Press' access to certain data from the City of Saint Paul.</p> <p>IPAD, on behalf of the Commissioner, wrote to Shari Moore, City Clerk, in response to Mr. Hannah's request. The purpose of this letter, dated April 23, 2010, was to inform her of Mr. Hannah's request and to ask her to provide information or support for the City's position. On May 12, 2010, IPAD received a response, dated same, from Reyne Rofuth, Senior Assistant City Attorney.</p> <p>A summary of the facts as Mr. Hannah provided them is as follows. On July 7, 2006, the <em>Pioneer Press</em> requested certain data from the City:</p> <p class="opinion_quote">A copy of the computerized incident-level data from your Computer-Aided Dispatch (CAD) system for all incidents from September 1, 2003 through June 30, 2006. We would like it to include all of the fields in the database, including but not limited to:</p> <p class="opinion_quote">- CN [call number] number</p> <p class="opinion_quote">- Cross reference CN number</p> <p class="opinion_quote">- Console Number</p> <p class="opinion_quote">- Incident Type</p> <p class="opinion_quote">- Priority of Call</p> <p class="opinion_quote">- Disposition of call</p> <p class="opinion_quote">- Date/time call received</p> <p class="opinion_quote">- Date/time call dispatched</p> <p class="opinion_quote">- Date/time squad arrived</p> <p class="opinion_quote">- Date/time squad cleared</p> <p class="opinion_quote">- Occur date from</p> <p class="opinion_quote">- Occur date to</p> <p class="opinion_quote">- Complete incident address, including house number, street name, suffix, direction and cross street</p> <p class="opinion_quote">- Sector and grid</p> <p>[Emphasis added.]</p> <p>The City responded:</p> <p class="opinion_quote">The St. Paul Police Department generates approximately 60,000 reports per year. The incident data from the CAD involves even more incidents. The data, whether in written report form or CAD system form, contains mixed data (public and not public data). Therefore, the Department would have to review each incident and redact not public data on over 170,000 incidents. It is unknown how long this would take, even given the reasonable time standard of [Minnesota Statutes, Chapter 13]. Therefore, our offer is to provide you with all the field data, except those fields that contain mixed data with the last two digits of addresses, removed. Below is a list of the always public data fields and the mixed data fields:</p> <p class="opinion_quote">Always public data fields:</p> <p class="opinion_quote">-Complaint number,</p> <p class="opinion_quote">-Cross reference number,</p> <p class="opinion_quote">-Console number,</p> <p class="opinion_quote">-Incident type,</p> <p class="opinion_quote">-Priority,</p> <p class="opinion_quote">-Disposition of call,</p> <p class="opinion_quote">-Date and time call received,</p> <p class="opinion_quote">-Data and time squad dispatched,</p> <p class="opinion_quote">-Date and time squad cleared call,</p> <p class="opinion_quote">-Occur date (from), and</p> <p class="opinion_quote">-Occur date (to).</p> <p class="opinion_quote">Mixed data fields:</p> <p class="opinion_quote">-Source of call,</p> <p class="opinion_quote">-Site of call,</p> <p class="opinion_quote">-Caller name,</p> <p class="opinion_quote">-Caller location,</p> <p class="opinion_quote">-Caller phone number,</p> <p class="opinion_quote">-Call anonymity, and</p> <p class="opinion_quote">-Incident address.</p> <p class="opinion_quote"><em>By removing the last two digits of all addresses, to protect not public data, you will be able to determine the incident location within a one to three block distance on any given street.</em> </p> <p>[Emphasis added.]</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Hannah's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for data from the City's Computer-Aided Dispatch system?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.03, subdivision 3, requires government entities to provide copies of public data upon request. Also, pursuant to section 13.03, subdivision 1, government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Certain law enforcement data always are public, regardless of whether there is an active investigation. Such data are listed in Minnesota Statutes, section 13.82, subdivisions 2 (arrest data), 3 (request for service data), and 6 (response or incident data). Most, if not all, of the time, when there is an incident involving a law enforcement agency, the agency collects and maintains the complete street address connected with the incident.</p> <p>Although most law enforcement data are public, there are several exceptions. One that is applicable here is section 13.82, subdivision 17, which requires law enforcement agencies to withhold data that would identify certain individuals, including: victims or alleged victims of criminal sexual conduct; victims of or witnesses to a crime if the individual has requested not to be publicly identified, unless the agency determines that the safety or property of the individual would not be threatened by the release of data; paid or unpaid informants in certain situations; undercover law enforcement officers; and juvenile witnesses in certain situations.</p> <p>In his opinion request, Mr. Hannah wrote:</p> <p class="opinion_quote">The Department has refused to provide the last two digits of thousands and thousands of addresses to the <em>Pioneer Press</em>, even though complete addresses are public under Section 13.82. Its only argument is that some addresses might be protected from nondisclosure under Section 13.82. According to [the City], "[i]t is unknown which specific subdivision [renders this data as nonpublic], without having to look at each report or incident."</p> <p>In her comments to the Commissioner, Ms. Rofuth wrote:</p> <p class="opinion_quote">It is true the SPPD [St. Paul Police Department] refused to provide full numerical addresses to the [<em>Pioneer Press]</em> in their requests for multiple year data dumps. It is the SPPD position [sic] they have the obligation to make the threat determination and other classification determinations under Minn. Stat. 13.82 at the time of the request because there are numerous situations in which the release of the address data fields would likely identify a protected individual, who's [sic] identity is private data. </p> <p class="opinion_quote">everyone who professionally works with [Chapter 13] knows[s] and struggle[s] with the fact [that Chapter 13] is outdated in its application to electronic data. The legislature has failed to address this extremely important issue and correct the problem which leaves government entities to deal with unfair threats of noncompliance on a daily basis or, at the very least, with confusion in its application. The SPPD struggles with this dilemma and always acts in good faith in responding to media request [sic] with all the data it can provide without violating the statutory protections of individuals.</p> <p>The Commissioner addressed a similar issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508" title="00-011" target="_blank">Advisory Opinion 00-011</a>:</p> <p class="opinion_quote">In their correspondence with Mr. Anfinson, SLMPSD [South Lake Minnetonka Public Safety Department] representatives told him that it would be very expensive and time-consuming to review and remove the not public data from the thousands of log sheets generated each year </p> <p class="opinion_quote">If government entities neglect their obligations to maintain data in easily accessible formats, this is the kind of situation that can arise. SLMPSD might want to consider a redesign of the log sheet in order to zone the not public data, so that they are easier to remove for purposes of inspection of the public data.</p> <p class="opinion_quote">SLMPSD is obligated to provide free inspection of the public data in the log sheets, and it must bear the cost of separating the not public from the public data.</p> <p>Although <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508" title="00-001" target="_blank">00-011</a> involved data in paper format, the analysis in that opinion applies to the matter Mr. Hannah raised. The City argued it would have to review each of the 170,000 incidents in the database prior to making a determination about how the data are classified. This response illustrates the very reason that when a government entity creates and develops an electronic database, staff must consider how the entity will respond to data requests involving data in the database. Perhaps if the City's database had been developed differently, staff could include certain public/not public classifications at the time of initial data entry and flag certain fields for classification at a later point in time.</p> <p>There is no dispute that some of the incident-related data the <em>Pioneer Press</em> requested are public and some are not public. Regarding address data, the Commissioner points out it is not necessarily the case that providing a complete street address connected to an incident identifies an individual whose identity requires protection under section 13.82. For example, if there is a shooting at a particular address and the witnesses to the incident (who requested that their identities be protected and the agency has followed the process outlined in section 13.82, subdivision 17) do not live at that address, the address is public. Or, for example, releasing the complete street address of an apartment building does not necessarily identify a witness (who has requested protection per section 13.82, subdivision 17) who lives in one of the units of the building.</p> <p>Ms. Rofuth also asserted that Minnesota Statutes, section 13.82, subdivision 16, allows the City to withhold the complete address data from the <em>Pioneer Press</em>. Section 13.82, subdivision 16, provides:</p> <p class="opinion_quote">When data is classified as public under this section, a law enforcement agency shall not be required to make the actual physical data available to the public if it is not administratively feasible to segregate the public data from the not public. However, the agency must make the information described as public data available to the public in a reasonable manner. When investigative data becomes inactive, as described in subdivision 7, the actual physical data associated with that investigation, including the public data, shall be available for public access.</p> <p>As the Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267634" title="94-054" target="_blank">Advisory Opinion 94-054</a>, section 13.82, subdivision 16, states that, when it is not administratively feasible for a law enforcement agency to separate public data from not public data, it is permissible for the law enforcement agency to not provide physical access to the data but to make the public data available to the public in some other reasonable manner. This provision is not a basis on which to deny access to public data. The Commissioner does not agree that it applies to the situation at hand.</p> <p>Mr. Hannah asked the Commissioner to determine whether the City responded appropriately to the <em>Pioneer Press'</em> data request. Pursuant to sections 13.03 and 13.82, the City must provide the <em>Pioneer Press</em> with the public data in the database and also withhold the not public data. However, in fulfilling its obligation under Chapter 13 to provide public data upon request, it is not appropriate for the City to withhold complete address information related to an incident because there is a possibility that release of the data will identify an individual whose identity must be protected pursuant to section 13.82. The City must determine, on a case-by-case basis, whether certain data related to an incident must be protected.</p> <p>Finally, Ms. Rofuth states that Chapter 13 has not been updated to reflect issues related to electronic data storage. Government entities are storing data in increasingly larger databases. If those databases are not designed to accommodate an entity's obligation to provide appropriate access to public data, it can be challenging. The Commissioner encourages government entities that house data in large databases, such as the City of Saint Paul, to raise their concerns with the Legislature.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Hannah raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>In agreeing to provide the Pioneer Press with certain incident-related public data (data in the "always public data fields"), the City of Saint Paul did comply with Minnesota Statutes, Chapter 13. However, the City did not comply with Chapter 13 in refusing to provide complete address data when the City had not determined that the release of the complete address data would identify an individual whose identity must be protected under section 13.82.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: June 1, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2668342666552022-01-18T19:35:44Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266898" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-05-17T15:14:43ZDid Independent School District 152, Moorhead, comply with Minnesota Statutes, Chapter 13, in denying access to the terms of a tentative settlement agreement with District teachers?May 17, 2010; School District 152 (Moorhead)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 26, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Matthew Von Pinnon, of the <em>Fargo Forum</em>. In his letter, Mr. Von Pinnon asked the Commissioner to issue an advisory opinion regarding the <em>Forum's</em> right to have access to the terms of a tentative settlement agreement between Independent School District 152, Moorhead, and its teachers' union. (IPAD requested clarification, which Mr. Von Pinnon provided on April 2, 2010.)</p> <p>IPAD, on behalf of the Commissioner, wrote to Lynne Kovash, District Superintendent, in response to Mr. Von Pinnon's request. The purposes of this letter, dated April 5, 2010, were to inform her of Mr. Von Pinnon's request and to ask her to provide information or support for the District's position. James E. Knutson, an attorney for the District, responded, in a letter dated April 22, 2010.</p> <p>The Commissioner also invited Steven G. Hoffmeyer, Commissioner of the Bureau of Mediation Services (BMS), to submit comments. Mr. Hoffmeyer did so, in a letter dated April 22, 2010.</p> <p>A summary of the facts follows. According to Mr. Von Pinnon, in a mediation session closed by BMS mediators, the Moorhead School District reached a tentative agreement with its teachers' unions on January 1, 2010.</p> <p>The <em>Forum</em> asked for access to the tentative agreement. The District replied, in an email dated January 4, 2010, that "[n]either the mediation sessions nor the content of the mediation sessions are [sic] considered public. We have no obligation to release the information from the mediation sessions, including the details of the tentative agreement."</p> <p>Mr. Von Pinnon wrote:</p> <p class="opinion_quote">Our attorney . . . contacted the lawyer for the Moorhead school district and asked him for the legal basis that the district was relying on to withhold the settlement terms. The lawyer cited Minn. Stat., sec. 179A.14, subd. 3, which is the statute that allows mediators to close meetings; according to our attorney, it does not classify data.</p> <p>In his comments to the Commissioner, Mr. Knutson wrote:</p> <p class="opinion_quote">Because the parties were unsuccessful in reaching an agreement through negotiations, mediation was requested from BMS. . . . . Pursuant to Minn. Stat. section179A.14, Subd. 3, the Mediator closed all mediation sessions as private. Therefore, as determined by the Mediator, all discussion that took place during these mediation sessions by and/or between the [District] and the Union, including documents and proposals exchanged between the parties or developed by each of the parties for mediation, were private. In addition, any discussions between the Mediator and either of the parties and between the parties and documents exchanged were private.</p> <p class="opinion_quote">Finally, in a mediation session conducted on January 1, 2010 between the Union, the [District] and the Mediator, a tentative agreement ("TA") was reached. The Mediator told the [District] and the Union that the TA was private information and would be private until ratified by Union members and the entire School Board voted on the TA. Based on the directive of the Mediator, the [District] was not obliged to disclose any documents, proposals or agreements that took place during mediation sessions.</p> <p>Mr. Knutson also stated:</p> <p class="opinion_quote">The School Board met in a private/closed session at 6:00 pm on January 11, 2010, pursuant to Minn. Stat. section13D.03, Subd. 1(b). At that time, the full School Board was advised of the contents of the TA. . . .</p> <p class="opinion_quote">A regular meeting of the School Board was held at 7:00 pm on January 11, 2010, immediately after the closed School Board meeting. At the regular meeting, the TA was made public and the School Board voted to approve it. A representative of the Fargo Forum was present at that meeting and received a copy.</p> <p>Mr. Knutson submitted a copy of that document, which is dated January 1, 2010, and entitled "Tentative Agreement." The document also contains this subheading: "Presented to Moorhead Area Public Schools School Board on January 11, 2010."</p> <p>In his comments, Commissioner Hoffmeyer discussed the mediation process, in general, and stated: "[t]his tentative agreement, like many such agreements, was a verbal agreement, documents were not exchanged. We do not believe the Minnesota Government Data Practices Act requires the creation of a document when one does not exist." (Formatting omitted.)</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Von Pinnon's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did Independent School District 152, Moorhead, comply with Minnesota Statutes, Chapter 13, in denying access to the terms of a tentative settlement agreement with District teachers?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Pursuant to Minnesota Statutes, section 13.02, subdivision 7, the term "government data" means "all data collected, created, received, maintained or disseminated by any [government entity] regardless of its physical form, storage media or conditions of use."</p> <p>In this situation, it is not clear if the data the <em>Forum</em> requested existed in physical form. Mr. Knutson referred to "documents and proposals exchanged between the parties or developed by each of the parties for mediation," but Commissioner Hoffmeyer stated the tentative agreement "was a verbal agreement, documents were not exchanged."</p> <p>It is not clear if Commissioner Hoffmeyer meant that there were no data that were responsive to the <em>Forum's</em> request, i.e., data from which the <em>Forum</em> could learn the terms of the settlement agreement, or if he is stating that nothing like a "tentative agreement document" existed. Commissioner Hoffmeyer is correct that Chapter 13 does not require an entity to create data in response to a request.</p> <p>However, in its response to the <em>Forum</em> and in its comments to the Commissioner, the District did not state that there were no data. Furthermore, as noted above, the District did possess a document entitled "Tentative Agreement" that was dated January 1, 2010, and presented to the School Board on January 11, 2010. The Commissioner cannot resolve the disparity between Mr. Hoffmeyer's and Mr. Knutson's comments.</p> <p>Therefore, this discussion will consider the <em>Forum's</em> right to gain access to the terms of the tentative agreement if those terms were data recorded in some physical form at the time the <em>Forum</em> made its request.</p> <p>The District stated that, pursuant to Minnesota Statutes, section 179A.14, subdivision 3, the mediation sessions and all related "documents and proposals exchanged between the parties or developed by each of the parties for mediation" were closed and "private" per the mediator's instruction.</p> <p>Pursuant to section 179A.14, subdivision 3, "[a]ll negotiations, mediation sessions, and hearings between public employers and public employees or their respective representatives are public meetings except when otherwise provided by the commissioner."</p> <p>Mr. Von Pinnon asserted that this provision does not classify data; the Commissioner agrees. In Advisory Opinion 06-015, the Commissioner addressed this issue:</p> <p class="opinion_quote">As prescribed in section 13.03, subdivision 1, government data are public unless otherwise classified by statute, temporary classification, or federal law. Accordingly, Minnesota Rules do not classify data, nor does a mediator's Order. Therefore, it was not appropriate for the Council to deny access to the data in the rejected contract offer based on either Minnesota Rules, section 5510.2905, or the mediator's Order.</p> <p>With regard to the School Board's closed meeting at which the Board was advised of the TA's contents, Mr. Knutson wrote:</p> <p class="opinion_quote">The [closed meeting] was held to discuss and review labor negotiations proposals. . . . . What the Fargo Forum is asking is that the [District] disclose this proposed TA . . . notwithstanding the fact that it was going to be disclosed to the School Board for the first time at a closed meeting. What is the purpose of holding a closed meeting to discuss a document that has already been disclosed? If this were the case, the sanctity of Minn. Stat. section13D.03, Subd. 1(6) [sic] would be destroyed and would be rendered meaningless.</p> <p>Minnesota Statutes, Section 13D.03, subdivision 1(b), provides:</p> <p class="opinion_quote">The governing body of a public employer may by a majority vote in a public meeting decide to hold a closed meeting to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25.</p> <p>The Commissioner respectfully disagrees with Mr. Knutson's position. Section 13D.03 allows a governing body to decide to close an otherwise open meeting for the purposes stated above; it does not classify data.</p> <p>Finally, although none of the parties here raised this issue, the Commissioner notes that Advisory Opinion 06-015 discussed the possibility that this kind of data may be classified under Minnesota Statutes, section 13.7908 (recodified from section 13.79, subdivision 2(b) in 2007), which states:</p> <p class="opinion_quote">Data received or maintained by the staff or commissioner of the Bureau of Mediation Services during the course of providing mediation services to the parties to a labor dispute under chapter 179 are classified as protected nonpublic data or confidential data on individuals, except to the extent the commissioner of the Bureau of Mediation Services determines access to data is necessary to fulfill the requirements of section 179A.16 or to identify the general nature of or parties to a labor dispute.</p> <p>Given the discrepancy between Mr. Knutson's and Commissioner Hoffmeyer's comments, it isn't clear if there were data the <em>Forum</em> sought that could have been classified under this provision at the time it made its request; the Commissioner raises the issue as it relates to the discussion in 06-015:</p> <p class="opinion_quote">However, the Commissioner believes an argument can be made that the Council appropriately withheld the data in the rejected contract pursuant to section 13.79. In his comments to the Commissioner, Mr. Grossman wrote:</p> <p class="opinion_quote">... At the time the Star Tribune requested the rejected contract proposal on January 17 or 18, 2006, the requested data fell squarely within the definition of mediation data as set forth in Minn. Stat. section 13.79, subd. 2(b). The Metropolitan Council and the Transit Union submitted this labor dispute to the Bureau of Mediation Services and were working with their appointed mediatorhellip;.</p> <p class="opinion_quote">Section 13.79, subdivision 2(b), appears to classify only those data maintained by the Bureau of Mediation Services. Such a reading, however, creates an absurd result, which, pursuant to Minnesota Statutes, section 645.17, is not to be presumed. If data relating to a mediation conducted by BMS are protected at BMS but not protected in the agency that created the data, the purpose in classifying the data at BMS is frustrated.</p> <p>The Commissioner, however, strongly encourages interested parties to take this issue to the Legislature to ensure that the valid policy reasons for protecting data during mediation are considered and appropriate data classifications adopted.</p> <p>In addition, in cases in which data are classified under section 13.7908, to the extent that BMS disseminates those data to an entity, it appears that the data are classified at that entity the same way they are classified at BMS. (See Minnesota Statutes, section 13.03, subdivision 4 (c).)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Von Pinnon raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>If data documenting the terms of a tentative settlement agreement with District teachers existed at the time of the request, Independent School District 152, Moorhead, did not comply with Minnesota Statutes, Chapter 13, in denying access pursuant to Minnesota Statutes, section 179A.14, subdivision 3.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: May 17, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2668982664642022-01-18T19:35:40Z266258266262266263266293266265266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267588" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-05-04T15:14:43ZDid the Ramsey County Sheriff’s Office comply with Minnesota Statutes, Chapter 13, in disclosing certain data to the Minnesota Department of Public Safety (DPS) given there has been no final disposition of disciplinary charges against the involved employee and DPS was not identified in the Tennessen warning notice given to the employee at the time of the Internal Affairs investigation?May 4, 2010; Ramsey County Sheriff's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 28, 2010, the Information Policy Analysis Division (IPAD) received a letter dated January 26, 2010, from Isaac Kaufman, on behalf of Law Enforcement Labor Services, Inc. In his letter, Mr. Kaufman asked the Commissioner to issue an advisory opinion as to whether the Ramsey County Sheriff's Office inappropriately disseminated data to the Minnesota Department of Public Safety (DPS). IPAD requested additional information, which Mr. Kaufman provided on March 8 and March 15, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Ramsey County Sheriff Bob Fletcher, in response to Mr. Kaufman's request. The purposes of this letter, dated March 19, 2010, were to inform him of Mr. Kaufman's request and to ask him to provide information or support for the Sheriff's Office's position. On April 9, 2010, IPAD received a response, dated April 7, 2010, from David Metusalem, Chief Deputy, Ramsey County Sheriff's Office.</p> <p>In a letter dated March 19, 2010, IPAD invited DPS to provide comments. On April 16, 2010, IPAD received comments from E. Joseph Newton, General Counsel for DPS.</p> <p>A summary of the facts as Mr. Kaufman provided them is as follows. In his opinion request, Mr. Kaufman wrote:</p> <p class="opinion_quote">a Ramsey County [employee] was interviewed as part of an Internal Affairs investigation. It was alleged that this [employee] had accessed the [Minnesota Department of Public Safety's Division of Driver and Vehicle Services (DVS)] database for non-law enforcement purposes.</p> <p class="opinion_quote">At the outset of the interview, the [employee] was shown a document entitled, "Advisement Prior to a Formal Statement," which [the employee] reviewed and signed. The Advisement included [a] Tennessen warning</p> <p class="opinion_quote">The Advisement contained no warning that the information collected during the interview might be disclosed to DVS ...</p> <p class="opinion_quote">[Approximately six weeks later] the County sustained disciplinary charges against [the employee]. [Law Enforcement Labor Services, Inc.] immediately filed a grievance. The grievance is currently pending, and there has been no final disposition of the disciplinary action under Minn. Stat. section 13.43, Subd. 2(b).</p> <p>Mr. Kaufman wrote that approximately one month later, the County investigator sent a letter to DVS. The letter outlined the complaint made against the employee, discussed database reports, explained the disciplinary action the Sheriff's Office took, and included information apparently from the employee during the interview.</p> <p>Mr. Kaufman provided the Commissioner with a copy of the document the employee signed, as well as a copy of the letter the Sheriff's Office sent to DVS.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Kaufman's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Ramsey County Sheriff's Office comply with Minnesota Statutes, Chapter 13, in disclosing certain data to the Minnesota Department of Public Safety (DPS) given there has been no final disposition of disciplinary charges against the involved employee and DPS was not identified in the Tennessen warning notice given to the employee at the time of the Internal Affairs investigation?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) <!--/font--> <p>Data about employees are classified pursuant to Minnesota Statutes, section 13.43. Certain data about employees are public (section 13.43, subdivision 2), and certain data are private (section 13.43, subdivision 4). Private data are accessible to the data subject but not to the public (section 13.02, subdivision 12).</p> <p>When a government entity collects private or confidential data about an individual from that individual, the entity must provide a notice, commonly referred to as a Tennessen warning. (Minnesota Statutes, section 13.04, subdivision 2.) This notice must contain the following: (1) the purpose and intended use of the data; in other words, why the entity is collecting the data and how it will use the data; (2) whether the individual can refuse or is legally required to provide the requested data; (3) what the consequences are of supplying or not supplying the data; and (4) the identity of other persons or entities authorized by state or federal law to receive the data.</p> <p>A government entity can disseminate private data to another government entity only in certain situations, one of which is when statutory authority exists for the sharing. In situations when the entity obtained the private data from the data subject and was required to give a Tennessen notice, the entity must have statutory authority to share the data <em>and</em> must have listed the outside entity in the notice as an entity that has authority to receive the data. (Sections 13.04, subdivision 2, and 13.05, subdivision 4.)</p> <p>Mr. Kaufman's question is whether the Sheriff's Office inappropriately disseminated private data about the employee to DPS. The data in question include the nature of the discipline, details about the complaint, database reports, and information the employee apparently provided to the Sheriff's Office regarding his/her actions. Of these data, it is only the information the investigator asked the employee to provide about her/himself that would have required the Sheriff's Office to provide a Tennessen warning notice.</p> <p>Mr. Metusalem provided limited comments to the Commissioner. He stated, "The individual and [his/her] actions which are the topic of the correspondence that Mr. Kaufman would like evaluated are the subject of an open criminal investigation and on-going administrative inquiry." Mr. Metusalem did not explain the Sheriff's Office's decision to disclose the data to DPS.</p> <p>Based on the information Mr. Kaufman provided, the Sheriff's Office began an administrative investigation into the employee's alleged misuse of the DVS database. As part of the investigation, which Mr. Kaufman characterized as "an Internal Affairs investigation," the employee was interviewed. At the outset of the interview, the employee reviewed and signed an "Advisement" that states, among other things, "You are being questioned as part of an official Ramsey County Sheriff's Department administrative investigation" and "The disclosure of any internal affairs file information to anyone investigating or considering criminal charges is prohibited."</p> <p>Mr. Kaufman asserts that the Advisement the employee signed included a Tennessen notice. Mr. Metusalem did not comment on the Advisement document itself or the issue of the Tennessen notice. Thus, the Commissioner assumes that the statements in the Advisement do constitute the Tennessen notice the Sheriff's Office gave the employee. Upon review, the Advisement neither explains to the employee that the data collected from him/her will be disseminated to DPS nor explains that the Sheriff's Office might use the data as part of its own criminal investigation.</p> <p>One statutory provision that allows the Sheriff's Office to disseminate private personnel data to DPS is Minnesota Statutes, section 13.43, subdivision 15, which states that private personnel data can be disseminated to a law enforcement agency "for the purpose of reporting a crime or alleged crime committed by an employee, or for the purpose of assisting law enforcement in the investigation of a crime committed or allegedly committed by an employee."</p> <p>DPS is responsible for the DVS database. Mr. Newton noted in his comments to the Commissioner that the misuse of the database is a crime. Thus, for DPS to determine whether a crime has occurred or for DPS to conduct its own criminal investigation, DPS would need to have access to some of the data the Sheriff's Office collected as part of the employee investigation. Ordinarily, the Sheriff's Office can disseminate any relevant private personnel data to DPS per section 13.43, subdivision 15. However, in this situation, pursuant to section 13.05, subdivision 4, the Sheriff's Office could not have disseminated to DPS any of the data collected from the employee about the employee because DPS is not listed in the Advisement as one of the outside entities authorized to access those data.</p> <p>Mr. Newton raised the issue that if the data in question are classified as not public active criminal investigative data (Minnesota Statutes, section 13.82, subdivision 7), then the Sheriff's Office also had the authority to share the data with DPS pursuant to section 13.82, subdivision 15. As noted above, Mr. Metusalem stated that there is an active criminal investigation; he did not provide any information as to the point in time when an active criminal investigation commenced. Based on the information Mr. Kaufman provided, the Sheriff's Office conducted the initial interview with the employee before it opened an active criminal investigation. Thus, the data collected from the employee are private personnel data, and are classified under section 13.43.</p> <p>A government entity is limited in how it can use private data within its own entity and who can gain access to the data. Pursuant to Minnesota Rules 1205.0400, subpart 2, private data are available to individuals "within the entity whose work assignments reasonably require access." Further, in a situation in which the collection of private data required the entity to give the data subject a Tennessen notice, the entity can use the data only in the ways it described in the notice. (Minnesota Statutes, sections 13.04, subdivision 2, and 13.05, subdivision 4.)</p> <p>When the Sheriff's Office collected private personnel data about the employee from the employee, it was required to provide a Tennessen notice. The notice should have explained that the Sheriff's Office might be using the data in a criminal investigation. It did not; therefore, the Sheriff's Office was not able to use those data in its criminal investigation.</p> <p>Accordingly, the Sheriff's Office could have used the data not subject to the limitations stated to the employee in the Tennessen notice in its criminal investigation, i.e., information from database reports, the type of disciplinary action the Sheriff's Office took, and details of the complaint. The Sheriff's Office then could share with DPS those data pursuant to section 13.82, subdivision 15. However, the Sheriff's Office could not use or share with DPS, in connection with a criminal investigation, the private personnel data it collected from the employee, about the employee, because it didn't tell her/him it could do so in the Tennessen notice.</p> <p>Finally, it is important to point out that complicated issues can arise when a government entity that is conducting an investigation into employee misconduct is both the employer and a law enforcement agency, as is the case here. Classification of the data depends upon whether the investigation begins as a personnel investigation (section 13.43 classifies data and Tennessen notice required) or as a criminal investigation (section 13.82 classifies data and Tennessen notice not required - section 13.04, subdivision 2). Here, based on the information provided by Mr. Kaufman, the data in question stem from a personnel investigation.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue that Mr. Kaufman raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Ramsey County Sheriff's Office had authority to disseminate certain private personnel data about the employee to the Minnesota Department of Public Safety (DPS) pursuant to Minnesota Statutes, section 13.43, subdivision 15.</p> <p>The Sheriff's Office had authority to disseminate certain active criminal investigative data to DPS pursuant to Minnesota Statutes section 13.82, subdivision 15.</p> <p>The Sheriff's Office did not have authority to disseminate to DPS the data it collected from the employee about the employee as part of the personnel investigation because the Tennessen notice did not meet the requirements of Minnesota Statutes, section 13.04.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: May 4, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2675882669202662692664932022-01-18T19:35:40Z266258266283266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267304" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-29T15:14:43ZDid members of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) comply with Minnesota Statutes, Chapter 13D, regarding the notice of a special meeting held November 30, 2009?April 29, 2010; Middle Snake Tamarac Rivers Watershed District Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 12, 2010, the Information Policy Analysis Division (IPAD) received a letter from Loren Zutz. In his letter, Mr. Zutz asked the Commissioner to issue an advisory opinion regarding the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) and the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Mr. Zutz submitted the $200.00 fee required by Minnesota Statutes, section 13.072.</p> <p>IPAD, on behalf of the Commissioner, wrote to Douglas Sorenson, Chairman of the Board, in a letter, dated March 16, 2010, to notify Mr. Sorenson of her intent to issue the opinion and to give the members of the Board an opportunity to explain their position. On April 5, 2010, IPAD received a response, dated same, from Jeffrey W. Hane, an attorney representing the Board. A summary of the facts follows.</p> <p>In his opinion request, Mr. Zutz, a former Board member, wrote that on November 30, 2009, the Board held a meeting that was noticed as a special meeting. According to Mr. Zutz, the notice was posted and published. The copy of the notice Mr. Zutz provided reads, "[a] Special Meeting of the [Board] will be held on Monday, November 30, 2009 at the District Office at 3:00 p.m. The purpose of the meeting is to (but not limited to) the [sic] review of Permit Applications."</p> <p>Mr. Zutz wrote: "[t]he Approved Minutes of the November 30 2009 special meeting . . . indicate that three permit applications were reviewed and approved. Additionally two other significant non-permit items were discussed and decided upon with no notice to the public . . . ."</p> <p>In his comments to the Commissioner, Mr. Hane wrote:</p> <p class="opinion_quote">The facts as set forth in Mr. Zutz's request are not quite correct. The Middle Snake Tamarac Rivers Watershed District typically adopts a schedule of routine meetings which fall on the first Monday and third Monday of every month, with the exception of holidays . . . . Attached is a true and correct copy of the 2009 Meeting Notice which indicates same. . . . .</p> <p class="opinion_quote">Mr. Zutz wishes to characterize [the November 30, 2009] meeting as a 'special meeting' as that term is used in Minn. Stat. section 13D.04, Subd. 2. That characterization is not correct. Mr. Zutz appears to have seized upon the words that appeared in the notice and determined that the meeting must have been a special meeting. However, just because the notice uses the language right out of 13D.04, Subd. 1 does not make the meeting a special meeting. Instead, it was merely one of the routine Monday meetings, but held at a different time and place.</p> <p>The copy of the 2009 schedule of regular meetings of the Board, which Mr. Hane provided, shows that the Board scheduled regular meetings twice monthly for April-October, and once per month from November-March. The schedule indicates that the Board had regular meetings scheduled for November 16, 2009, and December 21, 2009.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Zutz's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did members of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) comply with Minnesota Statutes, Chapter 13D, regarding the notice of a special meeting held November 30, 2009?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>There is no dispute between the parties that the Board is subject to the Open Meeting Law and must comply as provided in Minnesota Statutes, section 13D.01, subdivision 1(c)(3). (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267617" title="07-018" target="_blank">Advisory Opinion 07-018</a>.)</p> <p>Pursuant to the OML, public bodies hold three types of meetings: regular meetings, special meetings, and emergency meetings. Every public body is required to provide members of the public with notice of its meetings, regardless of the type of meeting. (Minnesota Statutes, section 13D.04.)</p> <p>For regular meetings, the only notice requirement is that the public body keeps a schedule of its regular meetings on file at its primary offices. If the public body decides to hold a regular meeting at a different time or place than is indicated on the schedule, it must give the same notice as is required for a special meeting. (Section13D.04, subdivision 1.)</p> <p>A special meeting is any meeting, other than an emergency meeting, that is not a regularly scheduled meeting. For a special meeting, the public body shall post written notice of the date, time, place, and purpose of the meeting. (Section 13D.04, subdivision 2.)</p> <p>Mr. Hane stated that the November 30, 2009, meeting was not a special meeting, but instead "merely one of the routine Monday meetings, but held at a different date and time." He wrote:</p> <p class="opinion_quote">The third Monday meeting in November took place on November 16, 2009. The normal next ordinary meeting date for the District, had there been sufficient general business to come before the Board, would have been the first Monday in December which was December 7. However, the Board had scheduled the annual meeting of the Advisory Committee for the District to take place on Monday, November 30. . . . . [so] the Board elected to move the meeting that would normally fall on the first Monday of December and instead hold it in conjunction with the annual Advisory Committee meeting.</p> <p>The Commissioner respectfully disagrees that the November 30, 2009 meeting was a regular meeting. As noted above, according to the schedule of regular meetings Mr. Hane provided, the Board did not have a regular meeting scheduled for December 7, so it could not have decided to hold that meeting at a different date/time. Furthermore, the notice of the November 30 meeting specifically stated that it was a special meeting, and members of the public had no way of knowing otherwise.</p> <p>The Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267471" title="04-004" target="_blank">Advisory Opinion 04-004</a>:</p> <p class="opinion_quote">[T]he Commissioner is of the opinion that the Board's actions are limited to those topics included in the notice of special meeting. This conclusion is further supported by the purpose and spirit of the OML, which is to allow the public the opportunity to participate in the government that represents it. The public cannot receive effective notice unless the Board is limited to acting on only those items for which notice was provided when the special meeting was scheduled.</p> <p>As noted above, special meetings are meetings that are neither regular nor emergency meetings. Accordingly, pursuant to section 13D.04, subdivision 2, the topics the Board could discuss or decide at that meeting were limited to the statement of purpose included in the notice.</p> <p>That notice stated that the purpose of the meeting was to "review permit applications," but also contained a qualifier, that it was "not limited to" that purpose. According to the minutes of the November 30 meeting, the Board acted on permit applications, and also "authorized the removal of the Texas crossing [on Judicial Ditch #25-1] and to replace the crossing with a 48 [inch] culvert" and approved the purchase of certain property.</p> <p>The Commissioner addressed this issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266366#/detail/appId/1/id/267355" title="07-014" target="_blank">Advisory Opinion 07-014</a>:</p> <p class="opinion_quote">The township's attorney argues that the statutory requirements were met. However, in order for the Board to be able to give notice to those who have requested notice about special meetings for specific purposes, more detail is needed than was provided before the September 13th meeting. See section 13D.04, subdivision 2(b). Mr. Gilchrist outlined five different legal issues that the Board discussed at the September 13th meeting. Without a more specific notice, there is no way for the members of the public to know what will be discussed and whether they should attend a special meeting. The public also had no way of knowing that these were the five legal issues that would be discussed.</p> <p class="opinion_quote">Mr. Gilchrist also argues that the concepts of new business and old business that apply in a regular meeting should apply to a special meeting. However, the public knows that any business can be discussed at a regular meeting of the Board. The September 13th meeting was a special meeting and different rules apply. Specifically, the Board is limited to the topics listed in the notice of special meeting. The phrase other legal issues does not give notice that the Board would, and did, discuss a traffic issue, enforcement of a zoning provision, the duties of the planning commission, review of permits issued under the zoning code and cutting weeds.</p> <p>Mr. Hane stated that Judicial Ditch 25-1 is a ditch under the control of the District, and the District "is not required to grant itself permits for its own activities, and has never in the past, issued permits to itself for its own activities on its own ditches."</p> <p>Regarding the Board's action to authorize the purchase of property, Mr. Hane wrote that the topic had been before the Board at other meetings, and the final approval of the transaction "was not a surprise to the public."</p> <p>However, at the November 30, 2009, meeting, the Board was limited to acting to "review permit applications" as stated on the notice of the special meeting.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Zutz raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Members of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) did not comply with Minnesota Statutes, Chapter 13D, regarding the notice of a special meeting held November 30, 2009.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 29, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2673042662902022-04-20T20:27:12Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267974" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-23T15:15:43ZIs the litigation committee or subcommittee of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) subject to the requirements of Minnesota Statutes, Chapter 13D?April 23, 2010; Middle Snake Tamarac Rivers Watershed District Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 10, 2010, the Information Policy Analysis Division (IPAD) received an email from Elden Elseth. In his email, Mr. Elseth asked the Commissioner to issue an advisory opinion regarding the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) and the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Mr. Elseth submitted the $200.00 fee required by Minnesota Statutes, section 13.072.</p> <p>IPAD, on behalf of the Commissioner, wrote to Douglas Sorenson, Chairman of the Board, in a letter dated March 16, 2010, to notify Mr. Sorenson of her intent to issue the opinion and to give the members of the Board an opportunity to explain their position. On April 5, 2010, IPAD received a response, dated same, from Gerald Von Korff, an attorney representing the Board. A summary of the facts follows.</p> <p>In his opinion request, Mr. Elseth, a former member of the Board, wrote, [o]n October 15th, 2007, the MSTRWD Board of Managers established a litigation subcommittee' to discuss litigation matters coming before the watershed district. Three of the seven members of the board were appointed to this committee or subcommittee.</p> <p>Mr. Elseth stated: [a]ccording to the October 15, 2007 minutes . . . of the MSTRWD Board, the purpose of this subcommittee was to address litigation or potential litigations in scheduled, closed sessions, with the District's legal council [sic].</p> <p>According to Mr. Von Korff, [t]he litigation committee was formed by the Managers upon our advice as a means of addressing attorney-client complications arising from the existence of three related litigations . . . .</p> <p>Mr. Von Korff stated that litigation committee meetings were conducted in compliance with the open meeting law.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Elseth's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Is the litigation committee or subcommittee of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) subject to the requirements of Minnesota Statutes, Chapter 13D?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>There is no dispute between the parties that the Middle Snake Tamarac Rivers Watershed District Board is subject to the Open Meeting Law. The issue before the Commissioner is whether the litigation committee is also subject to the OML.</p> <p>According to Minnesota Statutes, section 13D.01, subdivision 1, the OML applies to:</p> <p class="opinion_quote">All meetings, including executive sessions</p> <p><span class="opinion_quote">. . .</span></p> <p class="opinion_quote">(c) of any</p> <p class="opinion_quote">(1) committee,</p> <p class="opinion_quote">(2) subcommittee,</p> <p class="opinion_quote">. . .</p> <p class="opinion_quote">of a public body;</p> <p>The Legislature did not define meeting in Chapter 13D; however, in <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510 (Minn. 1983), the Supreme Court wrote:</p> <p class="opinion_quote">Meetings subject to the requirements of [Chapter 13D] are those gatherings of a quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</p> <p><em>Moberg</em> at 518.</p> <p>Thus, based on the above, meetings of the litigation committee of the Board are subject to the OML.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Elseth raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The litigation committee or subcommittee of the Middle Snake Tamarac Rivers Watershed District Board (MSTRWDB) is subject to the requirements of Minnesota Statutes, Chapter 13D.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 23, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2679742022-01-18T19:35:37Z266258266282266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267612" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-23T15:14:43ZDid the State Board of Public Defense comply with Minnesota Statutes, Chapter 13D, when, at a February 11, 2010, open meeting, (1) board members left the meeting to deliberate in a separate room and (2) after returning to the meeting, conducted a straw poll?April 23, 2010; State of Minnesota Board of Public Defense36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 9, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated March 4, 2010, from Sharon Jacks. In her letter, Ms. Jacks asked the Commissioner to issue an advisory opinion regarding whether the State of Minnesota Board of Public Defense complied with Minnesota Statutes, Chapter 13D, the Open Meeting Law.</p> <p>IPAD, on behalf of the Commissioner, wrote to Laura Budd, Board Chair, in response to Ms. Jacks' request. The purposes of this letter, dated March 19, 2010, were to inform her of Ms. Jacks' request and to ask her to provide information or support for the Board's position. On April 6, 2010, IPAD received a response from Ms. Budd.</p> <p>A summary of the facts as Ms. Jacks provided them is as follows. In her opinion request, Ms. Jacks wrote:</p> <p class="opinion_quote"><em>On February 11, 2010, I attended a Board of Public Defense meeting. I wanted to observe the Board's interviews of the applicants for the position of the Chief Appellate Defender. </em></p> <p class="opinion_quote"><em>After the last interview, it was announced that a short break would be taken before deliberations would begin. During that break, I noticed that the chief administrator for the public defense system and the board chair were escorting individual board members into an adjoining room. After a few minutes, a board member would reemerge and another would go into the room with the board chair and chief administrator. I do not know if the board chair was in the room the entire time. I did see at least four board members go into that room, and at times more than one board member was in the room.</em></p> <p class="opinion_quote"><em>To be respectful, I did not walk into the room but rather waited until a board member reemerged to ask what was happening. I told her that we were present for the open deliberations and asked if I should be going in the adjoining room to hear them. She replied that the meeting was open. At this point the chief administrator and a board member reentered the meeting room and the public deliberations began.</em></p> <p class="opinion_quote"><em>Those deliberations ended in less than 10 minutes. A straw poll was conducted. There were four votes for one applicant and one each for two other applicants. Then the board unanimously voted for [one of the applicants].</em></p> <p>Ms. Jacks attached to her opinion request signed statements from three individuals who also attended the February 11, 2010, meeting. One individual stated, "During the recess, I observed [the Board Chair] summon individual board members into a side room, one at a time. At least two members went into the room with [the Board Chair]." The second individual wrote, "I did witness [the Board's Chief Administrator] take individual board members into the hallway for private conversations. Eventually the conversations were moved to an adjourning [sic] room." The third individual stated, "I then watched as an individual from the State Public Defender Administrative Services Office took individual members of the Board into a side room, where some type of discussion was held."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Jacks' opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the State Board of Public Defense comply with Minnesota Statutes, Chapter 13D, when, at a February 11, 2010, open meeting, (1) board members left the meeting to deliberate in a separate room and (2) after returning to the meeting, conducted a straw poll?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>The first part of the issue Ms. Jacks asked the Commissioner to address is whether the Board complied with Minnesota Statutes, Chapter 13D, during the recess of the February 11, 2010, Board meeting.</p> <p>Minnesota Statutes, section 13D.01, subdivision 1, states, in part, "All meetings, including executive sessions, must be open to the public." The Legislature did not define "meeting" in Chapter 13D; however, in <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510 (Minn. 1983), the Supreme Court wrote:</p> <p class="opinion_quote">We therefore hold that "meetings" subject to the requirements of [Chapter 13D] are those gatherings of a quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.</p> <p><em>Moberg</em> at 518.</p> <p>In her comments to the Commissioner, Ms. Budd wrote:</p> <p class="opinion_quote"><em>There are no factual allegations in the letters which you received to support any claim that deliberations on the candidates took place anywhere but in the meeting room during the public meeting.</em></p> <p class="opinion_quote"><em>Second, there is nothing in any of the correspondence that you received that indicates that there was ever a quorum of board members together outside of the meeting room. In fact, the letters only indicate that at least two board members were outside the room.</em></p> <p class="opinion_quote"><em>On February 11, 2010 the board did in fact interview four candidates. After the final interview, the board recessed. During that time I did have a conversation with the Chief Administrator for the Board of Public Defense. That conversation centered on whether the Board could go into closed session to deliberate on the candidates. My concern was that since we had two candidates who already were Board of Defense employees, the discussion might well center on performance of these employees which could be construed as private. The Chief Administrator indicated to me that he did not believe the Board could close the meeting. At that time, the Vice Chair of the Board joined us. [He] also indicated that he did not believe the meeting could be closed. At this point we erred on the side of keeping the meeting open.</em></p> <p>The Commissioner's understanding is that the Minnesota Board of Public Defense is made up of seven individuals; however, based on the minutes Ms. Budd provided for the February 11, 2010, meeting, it appears only six board members were present at that meeting. Thus, the involvement of at least four board members is required for there to be a quorum.</p> <p>Neither Ms. Jacks nor the three other individuals who submitted comments on her behalf allege that four or more board members were gathered together outside the meeting room <em>at the same time</em>. Ms. Jacks, though, did state she saw at least four board members go into an adjoining room, and at times more than one board member was in the room. This raises the question of whether the Board was engaged in a serial-type meeting - exchanges between individual members of a public body on a particular topic, close in time, that collectively involve a quorum or more of the public body. The Minnesota Supreme Court wrote in <em>Moberg v. Independent School District No. 281</em>:</p> <p class="opinion_quote"><em>serial meetings in groups of less than a quorum for the purpose of avoiding public hearings or fashioning agreement on an issue may also be found to be a violation of [Chapter 13D] depending upon the facts of the individual case.</em></p> <p><em>Moberg</em> at 518.</p> <p>If the Board was conducting a serial-type meeting, any discussion or deliberation needed to occur during the official meeting, not during the time the Board was in recess.</p> <p>Ms. Budd presented a different set of facts; namely, that, during the recess, two members of the Board (she and the Vice Chair) and the Chief Administrator gathered to discuss whether the Board needed to close the meeting. Based on the discussion as described by Ms. Budd, because there was no quorum, there was no meeting pursuant to Chapter 13D. Ms. Budd wrote, "there is nothing in any of the correspondence that indicates that there was ever a quorum of board members together outside of the meeting room."</p> <p>The Commissioner cannot resolve factual disputes. Thus, she is unable to determine whether the Board complied with Chapter 13D during the time the board meeting was in recess. However, if the facts are as Ms. Jacks describes - at least four board members met individually with one or more board members in an adjoining room - than, per <em>Moberg</em>, the Board may have violated Chapter 13D by conducting serial meetings. If, on the other hand, the facts are as Ms. Budd describes - the Chair and Vice Chair met with the Chief Administrator to discuss closing the meeting and no other gatherings took place - then, there was likely not a violation of Chapter 13D because the gathering did not constitute a quorum of the full body.</p> <p>The second part of Ms. Jacks' question is whether the straw (unofficial) poll taken, apparently anonymously, at the February 11, 2010, meeting was appropriate. In her comments to the Commissioner, Ms. Budd wrote:</p> <p class="opinion_quote">When the Board returned from its recess it did deliberate for some time and a straw poll was conducted. [the straw poll] did not narrow the list of finalists, the vote was made public immediately, and the process was not designed to avoid any public discussion. Members of the audience found out the results of the straw poll at the same time as the members of the Board. Those in attendance were not denied any information. In fact, after the straw poll was conducted the two board members who did not prefer [the candidate with four votes] as their first choice indicated publicly who their preferred candidates were.</p> <p>The Minnesota Court of Appeals discussed straw votes in <em>Mankato Free Press v. City of Mankato</em>, 563 N.W.2d 291 (Minn.App. 1997), a case in which a city council took a written straw vote to narrow the list of finalists during a meeting. The results were not made public during the meeting, but were recorded in the meeting minutes, and were made available only at a later date. The Court wrote:</p> <p class="opinion_quote"><em>A city council meeting is not really "open" to the public if the council is conducting its voting in secret. Secret voting denies the public an opportunity to observe the decision-making process, to know the council members' stance on issues, and to be fully informed about the council's actions. We conclude that the straw vote here was a secret vote, and, as such, violated the Open Meeting Law.</em></p> <p><em>Mankato</em> at 295, 296.</p> <p>In the issue Ms. Jacks raised, although the Board took an anonymous straw vote at the February 11, 2010, meeting, because discussion at the meeting revealed the vote tally and the candidate voted for by each board member, the Commissioner concludes that the straw poll vote did not violate Chapter 13D.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Jacks raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Because there is a factual dispute regarding whether the Minnesota Board of Public Defense met inappropriately during the time its February 11, 2010, meeting was recessed, the Commissioner cannot determine whether the Board complied with Minnesota Statutes, Chapter 13D.</p> <p>Regarding the straw poll the Board took during its February 11, 2010, meeting, because the Board revealed the results of the straw poll during that same meeting, the Board complied with Minnesota Statutes, Chapter 13D.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 23, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2676122663632663642022-01-18T19:35:37Z266258514332266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266508" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-21T15:14:43ZDid the Middle Snake Tamarac Rivers Watershed District (MSTRWD) comply with Minnesota Statutes, Chapter 13, when it disclosed “the ‘estimated’ value reports of the Stengrim property” to the public at the March 16, 2009, Board Meeting? April 21, 2010; Middle Snake Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 4, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated March 1, 2010, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding whether the Middle Snake Tamarac Rivers Watershed District (MSTRWD) inappropriately disseminated data.</p> <p>IPAD, on behalf of the Commissioner, wrote to Nick Drees, Administrator of the MSTRWD, in response to Mr. Stengrim's request. The purposes of this letter, dated March 15, 2010, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for the MSTRWD's position. On April 5, 2010, IPAD received a response, dated same, from Gerald Von Korff, an attorney representing the MSTRWD.</p> <p>A summary of the facts as Mr. Stengrim provided them is as follows. In his opinion request, Mr. Stengrim wrote:</p> <p class="opinion_quote">Mr. [Gary] Toren of Toren Appraisal Services, was engaged by the MSTRWD to determine an "estimated" value range and/or "estimated" market value for a potential purchase of my real property. The MSTRWD distributed the February 10, 2009 letters (Exhibits A and B) to the public at the March 16, 2009 meeting. </p> <p>Mr. Stengrim provided to the Commissioner a copy of two letters, both dated February 10, 2009, addressed to Mr. Drees from Mr. Toren. The letters are identical except that the February 10, Exhibit A, letter contains certain text not contained in the February 10, Exhibit B, letter. The text in the February 10, Exhibit A, letter that is not in the February 10, Exhibit B, letter is Mr. Toren's estimate of the value of Mr. Stengrim's property. Mr. Toren gives a dollar value for the entire property, which he breaks into three component parts (cropland, CRP [Conservation Reserve Program] cropland, and woodland), and a dollar value for each of the three component parts. Both the February 10, Exhibit A, letter and the February 10, Exhibit B, letter also contain a range of the estimated market value of Mr. Stengrim's property.</p> <p>In a June 9, 2009, letter to MSTRWD Board Chair, Douglas Sorenson, Mr. Stengrim wrote: "The letter dated February 10, 2009 appears to be the report of the determined valued range and has been disseminated to the public. This willful action appears to be a clear violation of Minnesota Statutes, Chapter 13.44, subdivision 3."</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Stengrim's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Middle Snake Tamarac Rivers Watershed District (MSTRWD) comply with Minnesota Statutes, Chapter 13, when it disclosed "the 'estimated' value reports of the Stengrim property" to the public at the March 16, 2009, Board Meeting?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.44, subdivision 3(a), classifies "estimated or appraised values of individual parcels of real property that are made by personnel of a government entity or by independent appraisers acting for a government entity for the purpose of selling or acquiring land through purchase or condemnation" as confidential (data on individuals) or protected nonpublic (data not on individuals).</p> <p>In his comments to the Commissioner, Mr. Von Korff wrote:</p> <p class="opinion_quote">Mr. Stengrim inquired of [the MSTRWD] whether it would be willing to make a payment to induce him to settle [a court case] [Mr.] Stengrim's attorney indicated that another line of potential settlement would be that as part of the consideration for the settlement, [the MSTRWD] would take some land that [Mr.] Stengrim owned </p> <p class="opinion_quote">[The MSTRWD] had no need for this land. It did not want to purchase it. The only public purpose for receiving it would be to terminate its litigation with [Mr.] Stengrim </p> <p class="opinion_quote">It was for this reason that the managers commissioned a range of value opinion. They wanted to settle the dispute on the board of managers regarding whether the cost of the release was exorbitant or prudent</p> <p class="opinion_quote">The land valuation was not obtained for the purpose of purchasing land: it was acquired to assure that any settlement would be transparently costed</p> <p>Mr. Von Korff attached to his comments a February 26, 2009, letter from Mr. Stengrim to Mr. Toren. In this letter, Mr. Stengrim wrote:</p> <p class="opinion_quote">You confirmed that the MSTRWD requested that you determine "a value range" of the market value of my property for the potential purchase by MSTRWD. When asked if the MSTRWD informed you that this property was part of a settlement offer, not as a direct potential purchase, concerning a lawsuit you acknowledged they had not.</p> <p>Mr. Stengrim states that the MSTRWD obtained an appraisal of his property for the purpose of purchasing his property. Mr. Von Korff states that the MSTRWD obtained the appraisal to determine the value of Mr. Stengrim's settlement proposal. This is a factual dispute the Commissioner cannot resolve.</p> <p>If the MSTRWD obtained the appraisal for determining the value of Mr. Stengrim's settlement proposal, the data in question are not classified pursuant to section 13.44 and therefore, are public pursuant to the general presumption in Chapter 13. (Section 13.03, subdivision 1.)</p> <p>If, however, the MSTRWD obtained the appraisal because it was interested in purchasing Mr. Stengrim's property, the MSTRWD should not have released the <em>value</em> of the property until the occurrence of events listed in Minnesota Statutes, section 13.44, subdivision 3(c). The Commissioner notes that section 13.44, subdivision 3(a), protects only the estimated or appraised <em>value</em> of the real property, not the value range nor the other data contained in the appraisal documents, dated February 10, 2009. Thus, the only data that would be protected under section 13.44, subdivision 3(a), are Mr. Toren's estimate of the dollar value of Mr. Stengrim's property contained in the February 10, Exhibit A, letter. In other words, the total dollar value and the dollar values of the component parts (cropland, CRP cropland, and woodland) would not be public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Stengrim raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>If the Middle Snake Tamarac Rivers Watershed District (MSTRWD) obtained the appraisal to determine the value of Mr. Stengrim's settlement proposal, the data in question are public and the MSTRWD appropriately released the data. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>If the MSTRWD obtained the appraisal for the purpose of purchasing Mr. Stengrim's property, the dollar value (total plus dollar value of each component) is not public and should not have been released. (Minnesota Statutes, section 13.44, subdivision 3(a).)</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 21, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2665082665072022-01-18T19:35:37Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266564" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-12T15:14:43ZDid School District 861, Winona, comply with Minnesota Statutes, Chapter 13, in responding to a request for “all e-mails or other written forms of correspondence regarding how the superintendent evaluation is being conducted?”April 12, 2010; School District 861 (Winona)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 23, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated February 22, 2010, from Cynthya Porter, News Editor of the Winona Post. In her letter, Ms. Porter asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from School District 861, Winona. IPAD asked for additional information, which Ms. Porter provided on March 9, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Paul Durand, District Superintendent, in response to Ms. Porter's request. The purposes of this letter, dated March 11, 2010, were to inform him of Ms. Porter's request and to ask him to provide information or support for the District's position. On March 30, 2010, IPAD received a response, dated same, from Eric Quiring, an attorney representing the District.</p> <p>A summary of the facts as Ms. Porter provided them is as follows. In a January 8, 2010, email to the District, Ms. Porter wrote:</p> <p class="opinion_quote">We are requesting access to all e-mails or other written forms of correspondence regarding how the superintendent evaluation is being conducted.</p> <p class="opinion_quote">I understand that the evaluation itself contains protected personnel data regarding [performance], and that such information is not available. However, what we are requesting is communication regarding the preparation of the evaluation, including who is completing evaluation forms for the review, what the process will be for tabulating them and what the communication has consisted of regarding execution of that process.</p> <p>In a January 27, 2010, email to the District, Ms. Porter reiterated her request.</p> <p>In an email later in the day of January 27, 2010, the District responded: "Upon review of all e-mails by our attorney, I have been advised that all existing e-mails related to the superintendent evaluation process are private personnel data and can not [sic] be released."</p> <p>In a February 9, 2010, email to the District, Ms. Porter disputed the District's position:</p> <p class="opinion_quote">the Winona Post respectfully disagrees with the characterization that documents detailing how the evaluation is being conducted are protected personnel data. The contents of a personnel evaluation are private, the procedures to conduct one are not.</p> <p class="opinion_quote">That an evaluation is being conducted is not protected data. Procedural information regarding how the process is carried out, the names of the individuals submitting evaluations, the process for tabulating and disseminating data, and the employee's rights before, during and after the evaluation process are a matter of protocol and not evaluative in nature.</p> <p class="opinion_quote">Communications regarding that protocol do not constitute protected personnel data, they represent district communications regarding policies and procedures. We understand that in some situations statements can be made in the body of these documents that might be evaluative in nature and we acknowledge the district's responsibility to redact those specific statements.</p> <p>About the time Ms. Porter submitted her opinion request, Pat Blaisdell, the District's Director of Human Resources, sent an email to Ms. Porter. (Mr. Quiring provided a copy to the Commissioner.) The email contains a list of the names of the individuals who "were provided a copy of the superintendent evaluation form to complete."</p> <p>Ms. Blaisdell further wrote:</p> <p class="opinion_quote">The individuals listed were provided an addressed, stamped envelop [sic] and asked to complete the evaluation and return it by November 30, 2009. The individuals were advised the evaluation forms were anonymous and did not need to be signed.</p> <p class="opinion_quote">Once collected, the evaluation forms were tabulated, as per the superintendent's contract, by Brian Neil and Stacey Mounce Arnold.</p> <p class="opinion_quote">With regard to the employee's rights before, during, and after the evaluation process, I refer you to Article IX Section 5 (Superintendent Performance Appraisal) as amended July 27, 2006, which outlines the process for evaluation, and to Minnesota Statute 13.43.</p> <p>The District previously had provided a copy of the contract to Ms. Porter.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Porter's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did School District 861, Winona, comply with Minnesota Statutes, Chapter 13, in responding to a request for "all e-mails or other written forms of correspondence regarding how the superintendent evaluation is being conducted?"</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>In his comments to the Commissioner, Mr. Quiring wrote:</p> <p class="opinion_quote">Ms. Porter's request for communications regarding the superintendent's evaluation involves personnel data on an individual, Superintendent Durand. Even if Mr. Durand is not named, any data regarding his evaluation would be classified as data on an individual because Mr. Durand could be easily identified as the subject of that data.The data sought by Ms. Porter relates to Mr. Durand's employment and is not specifically classified as public under [Chapter 13]. Accordingly, the [District] properly determined that the communications relating to the superintendent evaluation are private personnel data.</p> <p class="opinion_quote">The [District] has identified the individuals who were provided evaluation forms, disclosed that the evaluations were anonymous, disclosed [who tabulated the evaluation forms]</p> <p class="opinion_quote">The [District] is not authorized to release private personnel data on Mr. Durand, whether it is part of the evaluation process or not. The communications sought by Ms. Porter do not contain data that would be public under Minnesota Statutes Section 13.43, subdivision 2. While it is true that any data that do not, or could not, identify an individual employee would be public, no such data exists in this case.</p> <p>In responding to data requests, government entities must provide the data, advise that the data are classified such that the requestor cannot have access, or inform the requestor that the data do not exist. Here, the District's initial response was that the data Ms. Porter requested were not public. After Ms. Porter disputed the District's determination, and nearly a month later, the District provided information regarding the process for evaluating the Superintendent. However, the District did not provide Ms. Porter with actual data, i.e., communications regarding the evaluation procedures and protocols. Rather, in her email, Ms. Blaisdell listed the evaluators and summarized parts of the process. As the Commissioner previously has opined, Chapter 13 gives people the right to gain access to government data as those data exist in the entity. (Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267866" title="04-031" target="_blank">04-031</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267822" title="07-015" target="_blank">07-015</a>.)</p> <p>In his comments, Mr. Quiring states that the communications Ms. Porter seeks do not contain public data. However, it seems likely that the information Ms. Blaisdell provided in her email to Ms. Porter came from government data maintained by the District. Such data are public and should have been provided to Ms. Porter - if they are part of a document that also contains not public data, the District's obligation is to redact the not public data and provide a copy of the remaining public data.</p> <p>Ms. Porter correctly asserts that data detailing how the evaluation is being conducted are public. These data are not data about the superintendent and, therefore, are not classified pursuant to section 13.43. Thus, they cannot be private personnel data. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267490" title="08-023" target="_blank">Advisory Opinion 08-023</a>, the Commissioner wrote, "the data in the contract are data that describe the general process the District uses to evaluate its superintendent, not specific performance evaluation data about Mr. Meeks. The data are not data on individuals as defined under section 13.02, subdivision 5, and therefore are public."</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Porter raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Assuming the information School District 861, Winona, provided in an email response are a compilation/summary of the actual data, the District did not comply with Minnesota Statutes, Chapter 13, in responding to a request for "all e-mails or other written forms of correspondence regarding how the superintendent evaluation is being conducted."</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 12, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2665642665632022-01-18T19:35:35Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266657" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-04-08T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Commerce maintains: the names of propane companies and their weekly residential propane prices for the heating seasons of 2003-2004 through the present obtained by the Department as part of a federal government survey?April 8, 2010; Minnesota Department of Commerce36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 18, 2010, the Information Policy Analysis Division (IPAD) received a letter from Alberto Quintela, Jr., staff attorney for the Minnesota Department of Commerce. In his letter, Mr. Quintela asked the Commissioner of Administration to issue an advisory opinion regarding the classification of certain data the Department maintains.</p> <p>A summary of the facts as Mr. Quintela provided them is as follows. He explained in his opinion request that the Department received a data request from someone wishing to inspect surveys of statewide retail prices for residential propane. Mr. Quintela wrote that the Department has data responsive to the request for "years 2003 to the present.</p> <p>Mr. Quintela wrote:</p> <p class="opinion_quote">[The Department] conducts a telephone survey of weekly residential propane prices during the winter heating season months on a voluntary basis on behalf of the Energy and Information Administration (EIA), which is part of the U.S. Department of Energy. The EIA uses the weekly fuels pricing information to monitor supply conditions for heating oil and propane, and it provides its analysts with the necessary information to monitor heating fuel prices in the event of sudden market changes or supply disruption.</p> <p class="opinion_quote">The survey form includes a space for [the Department] to record the name of a particular company together with the company's weekly residential price for No. 2 heating oil and propane. The EIA selects the particular group of companies to be included in each year's EIA survey.</p> <p class="opinion_quote">[The Department] conducts the [survey] by calling each EIA-selected company each week during the heating season. [The Department] promptly reports the survey information to the EIA. [The Department] creates Minnesota-specific summaries of residential heating oil and propane prices from the data it obtains from the [surveys].</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Quintela's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Commerce maintains: the names of propane companies and their weekly residential propane prices for the heating seasons of 2003-2004 through the present obtained by the Department as part of a federal government survey?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified by state or federal law. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In his opinion request, Mr. Quintela stated his position that the Department is not prohibited from publicly releasing the names of the propane companies and their weekly residential propane prices. First, he wrote:</p> <p class="opinion_quote">as stated by the EIA, the [Federal Freedom of Information Act (FOIA)] does not prohibit [the Department] from disclosing to the public the EIA [survey] data</p> <p class="opinion_quote">[EIA] confirmed in [a February 4, 2010, email to the Department its] understanding that EIA does not consider federal law to prohibit the [the Department] from disclosing to the public the EIA [survey] data. Rather, the EIA considers it to be permitted by Exemption 4 of FOIA to withhold EIA [survey] data when requests for the information are made to EIA, and the EIA does not disclose such data when asked. </p> <p>(Exemption 4 allows the federal government to withhold certain commercial or financial information and trade secrets. 5 U.S.C. section 552(b)(4).)</p> <p>Mr. Quintela included as part of his opinion request a copy of the February 4, 2010, email referenced above. In part, it states: "It is your office's judgment in responding [to the data request] whether to apply any exceptions provided under federal FOIA law or rely solely on your state law in responding to [the request]."</p> <p>Mr. Quintela also stated that the Department is not bound by a contract with the EIA that dictates classification of the data. This is significant because pursuant to Minnesota Statutes, section 13.35, as a condition of a contract, federal agencies can require that government entities treat, as private (data on individuals) or nonpublic (data not on individuals), data that an entity collects and maintains pursuant to the federal contract.</p> <p>Further, Mr. Quintela asserted that the weekly residential propane prices of the propane companies are not trade secret data, as defined by Minnesota Statutes, section 13.37. He wrote:</p> <p class="opinion_quote">[The Department] is of the view that the Propane Companies' weekly residential propane prices are publicly available upon request of consumers. To test this understanding, [the Department] made several test calls. Without identifying itself, [the Department] asked for a price quote for residential propane from three propane companies and received from each company its residential propane price. The pricing data appears to be consistent with the information [the Department] obtains in response to the weekly EIA [survey]. [The Department] concludes that the weekly residential propane prices of the Propane Companies are made public upon request and are not kept secret nor do they derive independent economic value from not being generally known or readily ascertainable. Thus, the Propane Companies' identities and their prices are not "trade secret" under the Data Practices Act.</p> <p>Finally, Mr. Quintela stated, "[Chapter 13] provides that all government data is public unless classified differently." He wrote:</p> <p class="opinion_quote">The information collected by [the Department] on behalf of EIA is government data. [The Department] has not identified a provision of [Chapter 13] that would permit [the Department] to classify the [survey] data as nonpublic so as to withhold [it] from public disclosure.</p> <p>The Commissioner agrees with Mr. Quintela; for the reasons he specified, the survey data in question are public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Quintela raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the following data the Minnesota Department of Commerce maintains are public: the names of propane companies and their weekly residential propane prices for the heating seasons of 2003-2004 through the present obtained by the Department as part of a federal government survey.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: April 8, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2666572666562022-01-18T19:35:34Z266258266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267451" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-03-16T15:14:43ZDid Ramsey County comply with Minnesota Statutes, Chapter 13, in charging $600 for copies of government data?March 16, 2010; Ramsey County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 29, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated January 28, 2010, from Dan McGrath. In his letter, Mr. McGrath asked the Commissioner to issue an advisory opinion regarding the fee Ramsey County charged him for copies of data.</p> <p>IPAD, on behalf of the Commissioner, wrote to Julie Kleinschmidt, Ramsey County Manager, in response to Mr. McGrath's request. The purposes of this letter, dated February 8, 2010, were to inform her of Mr. McGrath's request and to ask her to provide information or support for the County's position. On March 3, 2010, IPAD received a response, dated same, from Darwin Lookingbill, Civil Division Director, Ramsey County Attorney's Office.</p> <p>A summary of the facts is as follows. In an email dated January 19, 2010, Mr. McGrath wrote to Mr. Lookingbill regarding access to certain election data:</p> <p class="opinion_quote">Please see attached spreadsheet for specific polling place roster pages and/or absentee ballot envelopes and/or EDR [Election Day Registration] signature pages. I can either look through the entire precinct with an election department staffer, or will accept the specific page(s) that contain the data sought, or sufficient pages to demonstrate that the data sought does not exist.</p> <p class="opinion_quote">It may be simpler to produce the entire stack of documents for a given precinct and just let me flag the ones I may want copied but, of course, that will be more work for me, so I'll be fine with having the documents already set aside for me if you prefer.</p> <p class="opinion_quote">In addition, I will want to examine ALL documents (rosters, EDR signature pages, absentee ballot envelopes) for the following precincts.</p> <p>The subject line of Mr. McGrath's email is, "List of documents for review and possible copying."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. McGrath's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Ramsey County comply with Minnesota Statutes, Chapter 13, in charging $600 for copies of government data?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Minnesota Statutes, section 13.03, subdivision 3, applies when an individual who is not the data subject requests access to government data. If the individual wants to inspect the data, the entity may not charge any fee (section 13.03, subdivision 3(a)).</p> <p>If the individual wants copies of the data, the entity may choose to charge a fee. Section 13.03, subdivision 3(c), provides that if the number of requested paper copies is 100 or fewer, the entity can charge no more than $.25 per page. If the number of pages is more than 100, the entity's fee must be based on the actual costs of searching for and retrieving the data, and for making the copies.</p> <p>In his comments to the Commissioner, Mr. Lookingbill wrote:</p> <p class="opinion_quote">[Mr. McGrath] asked for all documents for each [of the individuals on Mr. McGrath's list] He asked for copies of all the documents we pulled for the individuals on the list which equaled exactly 118 pages.</p> <p class="opinion_quote">A total of 25 hours of staff time was devoted to assembling and copying these documents. Ramsey County charged Mr. McGrath $25 per hour for the staff time. This is a rate that is less than the actual salary and overhead of staff involved. The total initially requested was $625.</p> <p class="opinion_quote">After Mr. McGrath objected to the amount, I reviewed the billing and determined that some of the time could arguably relate to separating public from private data. The bill was then reduced to $42.</p> <p class="opinion_quote">This case is not like Advisory Opinion 04-038 where the party requested to inspect a large number of documents and then only copied a portion of those documents. The vast majority of the time incurred by Ramsey County related to retrieving and copying the information relating to the [requested data]. Mr. McGrath took copies of all that information.</p> <p class="opinion_quote">Furthermore, Mr. McGrath never requested a "free" inspection and then a separate request for copies.</p> <p>In addition, based on information Mr. Lookingbill provided, it appears the County, in its accounting of the 25 hours of staff time, billed Mr. McGrath for "obtaining documents from storage" and for "public inspection monitor."</p> <p>In his opinion request, Mr. McGrath wrote:</p> <p class="opinion_quote">On Wednesday, January 27th 2010, I visited Ramsey County Elections to inspect documents that Ramsey County workers retrieved at our request. I inspected the documents for two hours and requested copies of some that were pertinent.</p> <p class="opinion_quote">A Ramsey County worker informed me that the copies totaled 120 pages and that exceeded 100 so we would be billed for staff time instead of the typical 25 cents per copy.</p> <p class="opinion_quote">Going in, I did not know if I would want copies of any of the documents I asked to view or not. After reviewing them, I decided that I wanted copies of some of them.</p> <p class="opinion_quote">Thousands of pages were requested for inspection. Only 120 were afterwards requested for copying.</p> <p>Mr. Lookingbill states that Mr. McGrath, "asked for copies of all the documents we pulled which equaled exactly 118 pages. A total of 25 hours of staff time was devoted to assembling and copying these documents." Mr. McGrath states, "Thousands of pages were requested for inspection. Only 120 were afterwards requested for copying."</p> <p>The dispute here appears to be whether the County charged Mr. McGrath for searching for and retrieving data Mr. McGrath inspected but did not get copies of.</p> <p>If Mr. McGrath requested copies of all the data he inspected, the County can charge him the actual cost (searching for and retrieving the data, and making the copies) of copying all the data. If Mr. McGrath inspected the data and requested copies of only some, the County should pro-rate the fee based on the number of pages copied and the actual cost to search for and retrieve those pages. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267597" title="04-038" target="_blank">Advisory Opinion 04-038</a>.)</p> <p>The issue in this opinion is whether the County's copy charge is allowable under Chapter 13. Regarding the portion of the charge for "obtaining documents from storage" and for "public inspection monitor," the Commissioner's opinion is that Chapter 13 does not allow government entities to include either of these as part of a copy fee. (The Commissioner discussed data storage issues in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267781" title="95-044" target="_blank">Advisory Opinion 95-044</a>.)</p> <p>Regarding the remaining part of the charge, because there is a factual dispute, the Commissioner is unable to determine whether it is allowable.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. McGrath raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Ramsey County did not comply with Minnesota Statutes, Chapter 13, in requiring the requestor to pay, as part of the copy fee, for time staff spent obtaining documents from storage or monitoring during inspection. Regarding the remainder of the County's copy fee, because there is a factual dispute, the Commissioner cannot determine whether it is allowable under Chapter 13.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: March 16, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2674512665372668032022-01-18T19:35:34Z266258266293266420266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267537" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-03-11T16:15:43ZDid the City of Northfield comply with Minnesota Statutes, Chapter 13, in denying access to the names of the two finalists for the position of president of the Northfield Hospital?March 11, 2010; City of Northfield36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 25, 2010, the Information Policy Analysis Division (IPAD) received a letter from David DeLong. In his letter, Mr. DeLong asked the Commissioner to issue an advisory opinion regarding his right to access certain data about the City of Northfield Hospital.</p> <p>IPAD, on behalf of the Commissioner, wrote to Deborah Little, City Clerk, in response to Mr. DeLong's request. The purposes of this letter, dated February 9, 2010, were to inform her of Mr. DeLong's request and to ask her to provide information or support for the City's position. IPAD received a response from Ms. Little on February 24, 2010, and a response from Marin Swanson, attorney for the Northfield Hospital, on February 26, 2010.</p> <p>A summary of the facts as Mr. DeLong provided them is as follows. He wrote in his opinion request:</p> <p class="opinion_quote"><em>The Northfield Hospital announced that they would be commencing a search to replace the current President/CEO.</em></p> <p class="opinion_quote"><em>On 12/04/2009 [Friday] I made a public data request for the names of two finalists.</em></p> <p class="opinion_quote"><em>I made a data request at the Administration Office of the Northfield Hospital. [the current Hospital Administrator, Ken Bank said] we're not releasing the names yet, they need time to tell their employers and clear their schedule.I restated that I was making this request under the data practices act, and he said something to the effect that we don't deal with that here and that I should go check with City Hall.</em></p> <p class="opinion_quote"><em>I went over to Northfield City Hall, and explained that I had just been at the Hospital trying to find out the names of the two administrator finalists and they had sent me over here. [city staff] said that Deb (city clerk, and the city's responsible authority) was out, but she gave me a data request form to fill out. I filled out the form [city staff] said she didn't expect Deb back today, but she would see that she got it.</em></p> <p class="opinion_quote"><em>At 1:11 pm [Monday, December 7, 2009], Deb Little leaves me a message with the two names.</em></p> <p>In a letter dated December 11, 2009, Ms. Swanson wrote to Mr. DeLong:</p> <p class="opinion_quote"><em>At the time of your request on December 4, the process of selection of finalists to be interviewed for the position of President of the Northfield Hospital had not been completed. In other words, the process included both an offer of an interview by the Hospital and acceptance of the offer by the applicants.</em></p> <p class="opinion_quote"><em>Accordingly, at the time of your request the names of the applicants under consideration to be interviewed as finalists were still private data. The names became public when the Hospital's search consultant confirmed that those persons had not withdrawn their names and had accepted the opportunity to be interviewed as finalists.</em></p> <p class="opinion_quote"><em>With regard to your request being made to Ken Bank and his referring you to the City Clerk, please be aware that the Hospital is an instrumentality of the City and is subject to the data practices procedures and policies of the City. The City Clerk is the responsible authority and data practices compliance official of the City.[The City Clerk] has not designated the Hospital President [to assist in complying with the Data Practices Act]; therefore the City Clerk is the proper person to respond to a request such as yours.</em></p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. DeLong's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Northfield comply with Minnesota Statutes, Chapter 13, in denying access to the names of the two finalists for the position of president of the Northfield Hospital?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>In analyzing the responses from the City and the Hospital, the Commissioner has determined there are two questions to resolve; one is whether the City responded in a timely manner and the second is whether the response was responsive to Mr. DeLong's request.</p> <p>Regarding the timely response, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (Minnesota Statutes, section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such that the requestor cannot have access, or inform the requestor that the data do not exist.</p> <p>In her comments to the Commissioner, Ms. Little wrote that on Friday, December 4, 2009, she left the office shortly before Mr. DeLong made his data request. She further stated:</p> <p class="opinion_quote"><em>On Monday, December 7, 2009, upon returning to work, I received the data request. Staff informed me that Mr. DeLong had been sent [to the City] from the Northfield Hospital.</em></p> <p class="opinion_quote"><em>[On December 7] I sent an e-mail to Mr. Ken Bank, Hospital Administrator, for the requested information. I noted that I left a voice mail message for the requestor at 1:11 p.m. on December 7. The request was, therefore responded to within less than one business day from receipt.</em></p> <p class="opinion_quote"><em>After review of this situation, the City of Northfield has requested that Northfield Hospital adopt their own data practices policy and designate their own responsible authority. The Hospital has special data privacy issues and has staff with the related expertise in those areas. The City will, of course, continue to respond to all requests for data in the City's possession such as related to the purchase and sale of real estate and facilities and the construction of facilities when these items relate to City Council actions.</em></p> <p>Ms. Swanson wrote to the Commissioner:</p> <p class="opinion_quote"><em>Under Chapter 14 of the Northfield Charter the Hospital is owned and operated by the City. "Control and management" of the City's Hospital and related facilities is committed to a Board whose members are appointed by the Mayor and confirmed by a majority of the City Council.</em></p> <p class="opinion_quote"><em>Historically and presently, the City of Northfield and its responsible authority have been responsible for data practices matters for all of these board, commissions and authorities.</em></p> <p class="opinion_quote"><em>If the City Clerk needs to obtain data from the Hospital in order to respond to a data request, that is no different from obtaining data from the community development department or the finance department or the police department.</em></p> <p class="opinion_quote"><em>I am not aware of any law which states that a municipal hospital is a separate political subdivision of the State of Minnesota.</em></p> <p class="opinion_quote"><em>Lacking any legal authority which establishes that Northfield Hospital is a separate political subdivision, and given the local Charter and ordinance provisions which establish and affect the Hospital, I have concluded and I believe it is reasonable to conclude that the Hospital is an instrumentality of the City of Northfield. Accordingly, it is governed by the data practices policies and procedures of the City unless and until a different policy or set of procedures is adopted for it.</em></p> <p>Mr. DeLong requested data on Friday, December 4, 2009, from the Hospital. Staff there denied him access to the data and advised him to check with the City. Mr. DeLong then went to the City, also on December 4, and made a data request. The City responded on the following Monday by providing him with the names of two individuals.</p> <p>The Commissioner concludes the City did respond in a timely manner but disagrees with the City's determination of how some of the data related to Mr. DeLong's request are classified (see discussion below).</p> <p>In addition, the City and the Hospital need to clarify their policy on whether people should request Hospital-related data from the Hospital or from the City. According to Ms. Swanson, the Hospital falls under the umbrella of the City and therefore cannot be a separate political subdivision. Thus, if the parties determine the Hospital should respond to Hospital-related data, the City would need to designate someone at the Hospital to be the designee for those types of data. (Minnesota Statutes, section 13.03, subdivision 2, and Minnesota Rules, part 1205.1100.) The Commissioner urges the City and the Hospital to make a decision promptly and make any necessary changes to the City's data access procedures so that people know where to direct their data practices requests. (Minnesota Statutes, section 13.03, subdivision 2(b).)</p> <p>The other question before the Commissioner is whether the City/Hospital provided Mr. DeLong with data responsive to his request. On this issue, the Commissioner respectfully disagrees with Ms. Swanson's determination as to how data about the applicants are classified.</p> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 3, prior to an individual becoming a finalist, the following data are public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. Section 13.43, subdivision 3, further states:</p> <p class="opinion_quote"><em>Names of applicants shall be private except when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, 'finalist' means an individual who is selected to be interviewed by the appointing authority prior to the selection.</em></p> <p>Thus, an applicant's name becomes public when s/he is selected to be interviewed by the appointing authority; the applicant has become a finalist" for purposes of Minnesota Statutes, Chapter 13.</p> <p>In her comments to the Commissioner, Ms. Swanson wrote:</p> <p class="opinion_quote"><em>As indicated in my letter to Mr. DeLong on December 11, 2009, Northfield Hospital did not consider candidates for the particular position to be finalists until they had accepted the opportunity to be considered and interviewed as such by the Full Hospital Board.preferred candidates were identified by a search committee and conveyed to the search consultant. The consultant then communicated their selection to the candidates and gave them a deadline of December 7, 2009, to decide if they would accept the opportunity to be interviewed as a finalist and to inform their present employer. Until December 7, 2009, the candidates were potential finalists and not actual finalists for the position.</em> [Emphasis provided.]</p> <p>In <em>Mankato Free Press Co. v. City of North Mankato,</em> 563 N.W.2d 291 (Minn.App. 1997), the Minnesota Court of Appeals opined on a similar issue. The Court wrote:</p> <p class="opinion_quote"><em>The inclusion of the definition of finalist [in section 13.43, subd. 3] is a key consideration; it indicates that the triggering event that makes a name public is the selection of a candidate to be interviewed, not the candidate's acquiescence to the interview. To hold otherwise would give the candidate control over when his or her name is made public. The statute does contemplate such a result.</em> [Emphasis provided.]</p> <p class="opinion_quote"><em>The legislature's addition of the definition of "finalist" as well as the "selected to be" clause indicates an intent that the identities of finalists are to be made public when the appointing authority chooses them for interviews, not when the candidates agree to go forward with the interviews.</em></p> <p class="opinion_quote"><em>We recognize that the privacy concerns for public employment are at stake, but the statute and its legislative history suggest that the public's right to be informed outweighs an individual's privacy right in this context. We believe that the concerns raised by respondents can be addressed if the appointing authority advises candidates before they apply (or early in the selection process) that if they are selected to be interviewed they will be considered to be finalists under the statute and their names may be made public during the selection process.</em></p> <p><em>Mankato Free Press</em> at 294.</p> <p>In the issue currently before the Commissioner, it appears the Hospital's process of selecting <em>potential</em> finalists and giving them an opportunity to withdraw from consideration runs counter to the holding in <em>Mankato Free Press</em>. Thus, based on the language in section 13.43, subdivision 3, and the Court's decision in <em>Mankato Free Press</em>, as soon as the candidates were selected to be interviewed by the Hospital Board, they were finalists for the purposes of Chapter 13 and their names became public.</p> <p>Ms. Swanson indicated there are candidates who withdrew their names. She wrote:</p> <p class="opinion_quote"><em>In fact, there were potential "finalists" who did withdraw their names from consideration in order not to put their present employment at risk, who therefore did not become actual finalists who would be interviewed by the full Board. Their names never became public data under the data practices act.</em></p> <p>In the Commissioner's analysis, these candidates were finalists under section 13.43, subdivision 3; therefore, their names are public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Mr. DeLong raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, regarding a data request for the names of finalists for the position of president of the Northfield Hospital, the City of Northfield responded in a timely manner by providing some data responsive to the request but incorrectly classified some data as not public.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: March 11, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2675372663302668932667662022-01-18T19:35:33Z266258266262266263266301266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267621" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-03-11T16:14:43ZDid the Ramsey County Sheriff’s Office comply with Minnesota Statutes, Chapter 13, when it contacted gun “Permit to Carry” holders for a certain event?March 11, 2010; Ramsey County Sheriff's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 21, 2010, the Information Policy Analysis Division (IPAD) received a letter dated same, from "X" (a pseudonym, used pursuant to section 13.072, subdivision 4.) In his/her letter, X asked the Commissioner to issue an advisory opinion on whether the Ramsey County Sheriff's Office violated X's rights as a subject of government data when it used X's name and address to send X an invitation to an event the Sheriff was hosting. IPAD requested additional information/clarification, which X provided on January 26, 2010.</p> <p>IPAD, on behalf of the Commissioner, wrote to Bob Fletcher, Ramsey County Sheriff, in response to X's request. The purposes of this letter, dated January 27, 2010, were to inform him of X's request and to ask him to provide information or support for the Office's position. Sheriff Fletcher responded, in a letter dated February 23, 2010.</p> <p>A summary of the facts follows. According to X, s/he is a holder of a permit to carry a pistol, and the permit was issued by the Sheriff's Office, pursuant to Minnesota Statutes, section 624.714. The letter of invitation was mailed to X's home address.</p> <p>In his comments to the Commissioner, Sheriff Fletcher wrote:</p> <p class="opinion_quote">a potential issue may be one of whether sending correspondence to permit holders was a potential use consistent with the Tennessen Warning provided to the permit holder. It is our position that it clearly was as this correspondence was undertaken as part of the process to administer and enforce the Citizen's Personal Protection Act of 2003 in the manner noted below.</p> <p>Sheriff Fletcher referred to the letter in question as "the December 2nd [2009] mailing." The letter, on Ramsey County letterhead, was addressed, "Dear Ramsey County 'Permit to Carry' Holder." The letter refers to the rise in home foreclosures and "Sheriff Sales" in Ramsey County, and describes the needs of organizations serving the homeless:</p> <p class="opinion_quote">To help address this community need, the Sheriff's Office is hosting a fundraiser on December 12th-13th to assist the organizations serving homeless families. As the holder of a Ramsey County 'Permit to Carry a Handgun' you are being invited to shoot at the Ramsey County Sheriff's Office indoor firearms range.</p> <p>The letter describes the event as an opportunity to "reacquaint yourself with your handgun - improving your safety and reducing potential accidents," describes features of "this fundraiser" and states, "[t]he suggested tax deductible donation for this experience is a $150 check payable to one of five Ramsey County organizations serving homeless families: Catholic Charities, Union Gospel Mission, YWCA of St. Paul, The Family Place and Safe Zone."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Ramsey County Sheriff's Office comply with Minnesota Statutes, Chapter 13, when it contacted gun "Permit to Carry" holders for a certain event?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Pursuant to Minnesota Statutes, section 13.87, subdivision 2, "[a]ll data pertaining to the purchase or transfer of firearms and applications for permits to carry firearms which are collected by government entities pursuant to sections 624.712 to 624.719 are classified as private."</p> <p>Minnesota Statutes, section 13.05, subdivision 4, states that private or confidential data shall not be collected, stored, used, or disseminated by a government entity for any purposes other than those stated to the individual at the time of collection in accordance with Minnesota Statutes, section 13.04.</p> <p>According to section 13.04, subdivision 2, when a government entity collects private or confidential data from an individual about that individual, the entity is required to provide a notice, commonly referred to as the Tennessen warning, which must contain four elements. Of relevance here is one of the required elements: the purpose and intended use of the data; in other words, why the entity is collecting the data and how it will use the data.</p> <p>In his comments to the Commissioner, Sheriff Fletcher wrote:</p> <p class="opinion_quote">The names and addresses of Ramsey County 'permit to carry a pistol' licensees/permitees were used to contact permit holders by the permitting/licensing agency, the Ramsey County Sheriff's Office. There were two primary purposes of the contact and enclosed communication. Both purposes pertained to the permitting process and improved public safety. One assisted permit holders with their gun safety skills required by statute. The other assisted the Sheriff's Office in performing mandatory duties under the gun permit statute.</p> <p class="opinion_quote">The Tennessen Warning given to applicants advised them their information would be used to conduct background investigation of criminal histories, arrest records and warrant information to determine their eligibility to carry a pistol. This investigation includes annual required checks which are dependent upon correct addresses. Efforts to verify accurate addresses are part of the investigative process and authorized by law. The letter was an investigative tool to verify addresses.</p> <p>Minnesota Statutes, section 624.714, does not contain a provision that obligates a sheriff to provide training to permit holders. Per subdivision 2a, it states only that applicants for permits must present evidence that the applicant received training in the safe use of a pistol within one year of the date of an original or renewal application; the December 2009 letter makes no reference to this requirement.</p> <p>Also, the letter makes no mention of a permit holder's obligation to notify the Sherriff of an address change. The letter, as noted above, invites permit holders to attend a fundraising event the Sheriff sponsored to benefit certain organizations that serve the homeless population of Ramsey County. Sheriff Fletcher did not provide a copy of the Tennessen warning given to permit applicants, but based upon his characterization of the notice, it apparently did not state that the Sheriff's Office would use the private data applicants provided, namely name and address, to solicit them for a fundraiser.</p> <p>Further, pursuant to section 13.05, subdivision 3:</p> <p class="opinion_quote">Collection and storage of all data on individuals and the use and dissemination of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government.</p> <p>Section 624.714 governs the process whereby individuals may apply for a permit to carry a firearm. Subdivisions 14 and 15 restrict the maintenance and use of the data collected to activities related to "support a permit" or "verify the validity of a permit."</p> <p>Pursuant to section 624.714, subdivision 14, in relevant part:</p> <p class="opinion_quote">(a) A sheriff must not maintain records or data collected, made, or held under this section concerning any applicant or permit holder that are not necessary under this section to support a permit that is outstanding or eligible for renewal.</p> <p>Section 624.714, subdivision 15, provides:</p> <p class="opinion_quote">(a) The commissioner [of the Minnesota Department of Public Safety] must maintain an automated database of persons authorized to carry pistols under this section that is available 24 hours a day, seven days a week, only to law enforcement agencies, including prosecutors carrying out their duties under subdivision 8a, to verify the validity of a permit. [Emphasis added.]</p> <p>The Commissioner respectfully disagrees that the Office's stated purposes for the letter, i.e., to "assist permit holders with their gun safety skills" and to "aid in the enforcement of [section 624.714, subdivision 7a] requiring permit holders to notify the Sheriff's Office if they change address," are uses that are authorized under section 624.714.</p> <p>Although the event offered an opportunity for permit holders to fire their guns under supervision of the Sheriff's Office, the contents of the letter clearly state the purpose was to raise funds for the named organizations. As noted above, the letter makes no mention of a permit holder's obligation to provide the Sheriff with change-of-address information. Even if section 624.714 did authorize the Sheriff to use the data in this manner, permit holders were reportedly not so notified in the Tennessen warning.</p> <p>For these reasons, the Sheriff's Office's use of private permit data to invite permit holders to the event was not an authorized use under Chapter 13.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue X raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Ramsey County Sheriff's Office did not comply with Minnesota Statutes, Chapter 13, when it contacted gun "Permit to Carry" holders for a certain event.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: March 11, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2676212666982664932022-01-18T19:35:33Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267940" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-03-03T16:15:43ZIs the Dakota County Agricultural Society subject to Minnesota Statutes, Chapter 13? March 3, 2010; Dakota County Agricultural Society36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 2, 2010, the Information Policy Analysis Division (IPAD) received a letter dated February 1, 2010, from Annette Margarit, attorney for the Dakota County Agricultural Society. In her letter, Ms. Margarit asked the Commissioner to issue an advisory opinion as to whether the Agricultural Society is subject to the provisions of Minnesota Statutes, Chapter 13.</p> <p>A summary of the facts as Ms. Margarit provided them is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">The [Agricultural Society] was incorporated in 1918 as a perpetual non-profit corporation pursuant to now Minnesota Statute Chapter 38. Its primary task is to run the Dakota County Fair. Any adult who resides in Dakota County can be a member of the Agricultural Society. The Agricultural Society members elect a Board of Directors at its annual meeting in November. The Agricultural Society owns real property within Dakota County upon which it annually conducts the Dakota County Fair.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Margarit's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Is the Dakota County Agricultural Society subject to Minnesota Statutes, Chapter 13?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>All government entities are governed by Minnesota Statutes, Chapter 13. (Minnesota Statutes, section 13.01, subdivision 1.)</p> <p>The term "government entity" is defined as "a state agency, statewide system, or political subdivision." (Minnesota Statutes, section 13.02, subdivision 7a.)</p> <p>The term "political subdivision" is defined, in relevant part, as "any board, commission, district or authority created pursuant to law, local ordinance or charter provision." (Minnesota Statutes, section 13.02, subdivision 11.)</p> <p>Minnesota Statutes, section 38.01, discusses the formation and powers of county agricultural societies. Clause (a), in part, states:</p> <p class="opinion_quote">An agricultural society or association may be incorporated by citizens of any county, or two or more counties jointly, but only one agricultural society shall be organized in any county. An agricultural society may sue and be sued in its corporate name; may adopt bylaws, rules, and regulations, alter and amend the same; may purchase and hold, lease and control any real or personal property deemed to promote the objects of the society, and may rent, lease, sell, and convey the same.</p> <p>As stated above, pursuant to section 13.02, subdivision 11, a political subdivision includes an entity created pursuant to law. Minnesota Statutes, Chapter 38, contains the enabling legislation that grants county agricultural societies their powers and responsibilities. Thus, county agricultural societies are political subdivisions as that term is defined in Chapter 13.</p> <p>Further, language enacted during the 2004 Legislative Session provides, "Reports of [county agricultural societies] are public data under chapter 13 and must be made available for inspection by any person." (Minnesota Statutes, section 38.04.) Generally, the construction and operation of Chapter 13 either subject an entity to Chapter 13 requirements or not (or subject an entity in limited ways, as in the case of a contractual relationship). Section 38.04 refers only to reports of a county agricultural society being public under Chapter 13; because an agricultural society is a political subdivision as defined in section 13.02, subdivision 11, all of its data are subject to the requirements of Chapter 13. The Commissioner assumes the language in section 38.04 to be a partial restatement of the general presumption that all (county agricultural society) data are public unless otherwise classified (Minnesota Statutes, section 13.03, subdivision 1).</p> <p>For the reasons specified above, it is the Commissioner's conclusion that a county agricultural society, such as the Dakota County Agricultural Society, is a political subdivision and, therefore, is subject to the requirements of Chapter 13.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Margarit raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Dakota County Agricultural Society is subject to Minnesota Statutes, Chapter 13.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: March 3, 2010</p> <hr /> </td> </tr> </tbody> </table> </div>2679402022-07-27T23:23:30Z266258266323266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267564" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-03-03T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data in a City of Winnebago report related to an investigation into complaints made by a city employee? March 3, 2010; City of Winnebago36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> <p><strong>Note: The Minnesota Supreme Court in</strong> <em><strong>Burks v. Metropolitan Council,</strong></em> <strong>884 N.W. 2d 338 (Minn. 2016), No. A14-1651</strong><strong>,</strong> <strong>held that data subjects have the right to access data about themselves, even if the data in question identify private data on other individuals.</strong></p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0" /> <br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 20, 2010, IPAD received a letter dated January 19, 2010, from Julie Fleming-Wolfe, attorney for the City of Winnebago. In her letter, Ms. Fleming-Wolfe, asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains.</p> <p>A summary of the facts as Ms. Fleming-Wolfe provided them is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">The City hired an independent investigator to investigate [certain allegations made by a City employee]. The investigator issued a report, essentially finding that there was no substantiation for the allegations of wrongdoing.</p> <p class="opinion_quote">I reviewed the investigator's report I determined that the report could not be released to the public because it contained allegations that had not been substantiated so there was no discipline, and because it includes a substantial amount of private data under Minn. Stat. section 13.43, and the private data was too intertwined with any public data so as to be incapable of reasonable redaction.</p> <p class="opinion_quote">The local media and some City employees referenced in the report have objected to non-disclosure of the report.</p> <p>Ms. Fleming-Wolfe provided the Commissioner with a copy of the report, in which a few of the pages have been redacted. The report contains data about employees, elected officials, and witnesses, and the investigator's analyses.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Fleming-Wolfe's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in a City of Winnebago report related to an investigation into complaints made by a city employee?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Here, Ms. Fleming-Wolfe asked about the classification of the data in the report. In situations such as these, the Commissioner can offer only general guidance because government entity staff, with their knowledge of the relevant facts, circumstances, and involved data subjects, are in the best position to make decisions about classification.</p> <p>The report contains data about several categories of individuals. One category is individuals who are City employees. Data about current or former employees are classified pursuant to Minnesota Statutes, section 13.43. Certain data about employees are public (section 13.43, subdivision 2), and certain data are private (section 13.43, subdivision 4). Private data are accessible to the data subject but not to the public (section 13.02, subdivision 12).</p> <p>In a situation where someone has complained about an employee, the fact that a complaint exists and the status of the complaint are public. (Section 13.43, subdivision 2(a)(4).) If the government entity has taken disciplinary action and a final disposition has occurred, the final disposition together with the specific reasons for the action and data documenting the basis for the action are public. (Section 13.43, subdivision 2(a)(5).) Section 13.43, subdivision 2(b), describes the point in time when a final disposition occurs.</p> <p>Ms. Fleming-Wolfe stated that the allegations made by a City employee were not substantiated; the City did not take disciplinary action and there was no final disposition. Thus, regarding data about employees who were the subjects of the complaint(s), the fact that a complaint exists and its status are public. Other data related to the complaint are not public. Any other data about those employees are classified pursuant to section 13.43; some may be public and some may be private.</p> <p>Regarding data in the report about employees who were not the subjects of the complaint(s), the data are classified pursuant to section 13.43; some may be public and some may be private.</p> <p>The report also contains data about individuals who are elected officials. Chapter 13 does not contain a specific classification for data about elected officials. However, in previously-issued advisory opinions, the Commissioner consistently has opined that the classification of data about elected officials depends upon whether the entity considers the elected official to be an employee. If so, the data are classified pursuant to section 13.43. If not, the data are presumed public pursuant to the general presumption in section 13.03, subdivision 1. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267335" title="03-011" target="_blank">Advisory Opinion 03-011</a>, for example.) Here, the Commissioner does not know whether the City considers its elected officials to be employees for the purposes of Chapter 13.</p> <p>The report also contains data about individuals who are witnesses. It appears that some of the witnesses are employees of other Minnesota government entities; if the investigator collected data about these individuals because they are employees or volunteers or independent contractors, the data classified pursuant to section 13.43. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267685" title="97-030" target="_blank">Advisory Opinion 97-030</a>.) However, if the data were not collected for this reason, the data are public pursuant to the general presumption in section 13.03, subdivision 1. Regarding non-employee witnesses, the data are public pursuant to the general presumption in section 13.03, subdivision 1.</p> <p>Finally, Ms. Fleming-Wolfe stated that the private data were "too intertwined with any public data so as to be incapable of reasonable redaction." On this point, the City needs to consider the Commissioner's discussion in a previous opinion, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267622" title="04-014" target="_blank">Advisory Opinion 04-014</a>, about data that are inextricably intertwined. The Commissioner wrote:</p> <p class="opinion_quote">In <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509 (Minn.App. 1993), the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value.</p> <p>The Commissioner further wrote in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267622" title="04-014" target="_blank">04-014</a>:</p> <p class="opinion_quote">Therefore, if it is not possible for the [School District] to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, Inc., maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately. Given the clear presumption of openness in Chapter 13, the District should make every effort to avoid a situation where it must withhold an entire document from the public. The Commissioner adds that the [School District] must disclose any public data in the document, including, pursuant to section 13.43, subdivision 2(a)(4), that a complaint was made the status of the complaint, and the name of the employee about whom the complaint was made.</p> <p>In the matter currently before the Commissioner, the City, not the Commissioner, is in the best position to determine whether the data are inextricably intertwined. The City should review the Commissioner's guidance in making its decision.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Fleming-Wolfe raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The City, not the Commissioner, is in the best position to determine the classification of the data in the investigative report; the Commissioner can offer only general guidance. In making its determination, the City should consider the following: data about individuals collected because they are employees are classified pursuant to Minnesota Statutes, section 13.43; data about elected officials are classified pursuant to section 13.43 or are public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1; and data about non-employee witnesses are public pursuant to section 13.03, subdivision 1.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: March 3, 2010</p> <hr /></div>2675642664342663272663282024-05-16T16:20:36Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266558" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-02-10T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data maintained by Independent School District 11, Anoka-Hennepin, related to the following circumstance: 1) the District disciplined an employee; 2) the employee grieved the discipline under collective bargaining rights; 3) the grievance was denied and the matter was referred to arbitration; and 4) prior to the arbitration hearing, the parties reached a mutual resolution of the grievance, which, according to the District, included disciplinary action. February 10, 2010; School District 11 (Anoka-Hennepin)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On December 10, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated December 8, 2009, from Paul Cady, General Counsel for Independent School District 11, Anoka-Hennepin. In his letter, Mr. Cady asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. (IPAD requested clarification and additional information, which Mr. Cady provided on December 18 and 23, 2009.)</p> <p>Because the outcome of this opinion may affect the rights of the data subject, the Commissioner offered him/her an opportunity to submit comments. The Commissioner also invited Anne Krisnik of Education Minnesota (the labor union representing the employee), and John Borger and Leita Walker, attorneys representing the Star Tribune, to submit comments if they choose. Ms. Krisnik submitted comments in a letter dated January 13, 2010; Ms. Walker submitted comments in a letter dated January 8, 2010.</p> <p>A summary of the facts follows. According to Mr. Cady, following an investigation of a complaint, the District took disciplinary action including a Minnesota Statutes, section 122A.40, subdivision 9, Letter of Deficiency. Subsequently, the employee grieved the discipline, the grievance was denied and the matter was referred to arbitration. Prior to the arbitration hearing, the parties reached a "mutual resolution" of the grievance. According to Mr. Cady, the resolution included disciplinary action. He wrote:</p> <p class="opinion_quote">A final disposition of any disciplinary action is classified as public data. Minn. Stat. section13.43, subd. 2(a)(5). . . . . A final disposition is defined by Minn. Stat. section13.43, subd. 2(b) which provides, in part, that 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 period provided by the collective bargaining agreement. A final disposition may also include any discipline agreed to by the parties as a resolution and disposition of the grievance process. In the instant matter, the parties' . . . grievance resolution constitutes a final disposition. When the parties resolve a matter in the grievance process, they are also electing not to proceed forward to arbitration. As such, the resolution is a final disposition. Consequently, if the resolution includes discipline, then the discipline together with the specific reasons for the action and data documenting the basis of the action is public.</p> <p class="opinion_quote">. . . . [i]t is the District's position that the public data, as set forth in Minn. Stat. section13.43, subd. 2(a)(5), regarding the final disposition of the disciplinary action includes the . . . letter summarizing the grievance resolution and final disposition together with the specific reasons for the action and data documenting the basis of the action (including the . . . Letter of Deficiency . . . as well as Summary of Investigative Findings) . . . . [Emphasis omitted.]</p> <p>Mr. Cady also discussed the District's general policies and practices related to how it handles discipline of its employees.</p> <p>In her comments to the Commissioner, Ms. Krisnik disagreed with the District's position that the resolution of the grievance included disciplinary action, a factual dispute the Commissioner cannot resolve. Regarding the issue of whether there has been a final disposition here, Ms. Krisnik wrote:</p> <p class="opinion_quote">The key question in this case is how settlement of a grievance, short of arbitration, impacts the classification of the original action. . . . .</p> <p class="opinion_quote">. . . in cases covered by a grievance procedure, final disposition occurs (1) once an arbitrator rules on a grievance, or (2) when the employee/union gives up the right to challenge the action. In this case, the school district imposed discipline, the employee filed a grievance, and the discipline was subsequently rescinded by agreement of the parties. The original action cannot now be released as disciplinary action.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Cady's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data maintained by Independent School District 11, Anoka-Hennepin, related to the following circumstance: 1) the District disciplined an employee; 2) the employee grieved the discipline under collective bargaining rights; 3) the grievance was denied and the matter was referred to arbitration; and 4) prior to the arbitration hearing, the parties reached a mutual resolution of the grievance, which, according to the District, included disciplinary action.</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Also, according to section 13.43, subdivision 2(a)(6), the following data, in part, are public: the terms of any agreement settling any dispute arising out of an employment relationship.</p> <p>As noted above, the District and the employee and his/her Union do not agree if the resolution of the grievance included disciplinary action. The District has made its determination, and the employee/Union have remedies available to them to pursue their disagreement.</p> <p>For purposes of the discussion here, the question is whether, in general, there is a final disposition of a disciplinary action when a resolution of a grievance that includes disciplinary action happens in the midst of arbitration proceedings.</p> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 2(b):</p> <p class="opinion_quote">(b) For purposes of this subdivision, 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. <em>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.</em> Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the government entity, or arbitrator. [Emphasis added.]</p> <p>Ms. Walker noted that the provision quoted directly above states that a final disposition occurs at the <em>conclusion</em> of the arbitration proceedings. She wrote:</p> <p class="opinion_quote">It does not state, for example, that 'a final disposition occurs when the arbitrator makes a decision after a hearing.' The Legislature could have used such language. Indeed, it could have easily modeled the second sentence of section13.43 subd. 2(b) after the first, by stating that 'a final disposition occurs when [the arbitrator] <em>makes its final decision</em> about the disciplinary action.' However, it did not do sohellip;.</p> <p class="opinion_quote">Although a decision on the merits is one way to conclude arbitration, it is not the only way . . . . Arbitration proceedings may also conclude when, as here, the parties resolve a grievance outside of arbitration so that no hearing or decision is necessary. It defies logic to suggest that if a matter is referred to arbitration but settles before the arbitration hearing, then the matter remains open and 'unconcluded' for eternity. For practical and all other purposes, settlement concludes an arbitration proceeding.</p> <p>The Legislature did not define the meaning of the phrase "conclusion of arbitration proceedings" in section 13.43, subdivision 2(b). Minnesota Statutes, section 645.08, provides that words and phrases not defined in statute are to be construed according to their common and approved usage. The <em>Random House Dictionary</em>, Random House Inc. (2010) defines "conclusion" as "a result, issue, or outcome; settlement or arrangement" and "proceedings" as "a series of activities or events; happenings."</p> <p>Thus, it is reasonable to conclude that when parties resolve a grievance that has been referred to arbitration before it is settled through arbitration, the mutual resolution concludes the arbitration proceedings. Accordingly, in the scenario under discussion, if disciplinary action is part of the resolution, there is a final disposition of that disciplinary action within the meaning of section 13.43, subdivision 2(b).</p> <p>In addition, Mr. Cady stated that another way to conclude that there is a final disposition under this scenario is that "[w]hen the parties resolve a matter in the grievance process, they are also electing not to proceed forward to arbitration." The Commissioner agrees that it is a reasonable for the District to take that position.</p> <p>Accordingly, in this matter, if the District did take disciplinary action, there is a final disposition of that action, and the following data are public: the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action, along with the terms of any agreement settling the dispute. If it did not, then the following data are public: existence and status of the complaint or charge, and terms settling the disagreement.</p> <p>The Commissioner is aware that the Minnesota Court of Appeals ruled on a case that appears to be relevant here. However, the Court of Appeals declined to review whether the entity had taken disciplinary action, and therefore, the Commissioner concludes that case has limited applicability without legislative clarification. (See <em>Duluth v. Duluth Police Local</em>, 690 N.W.2d 357, 360 (Minn. App. 2004).)</p> <p>Finally, upon review of the documents in question, it appears they may contain private data about students, and about other District employees. (Subject to limited exceptions, data about students and their parents are private, and may not be released without consent. Minnesota Statutes, section 13.32, and the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267050" title="09-008" target="_blank">Advisory Opinion 09-008</a>, which discussed changes to the federal regulations implementing FERPA, which were effective January 8, 2009.)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue that Mr. Cady raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, if the mutual resolution entered into between the District and the employee includes disciplinary action, a final disposition has occurred within the meaning of section 13.43, subdivision 2(b). Thus, the following data are public: the final disposition of the disciplinary action together with the specific reasons for the action and data documenting the basis for the action. Also, the terms of any agreement settling any dispute arising out of the employment relationship are public.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: February 10, 2010</p> <hr /></td> </tr> </tbody> </table> </div>2665582664052022-01-18T19:35:31Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267745" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2010-01-26T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by the City of Hewitt: audio recordings of closed public meetings?January 26, 2010; City of Hewitt36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <h2>Facts and Procedural History:</h2> <p>On December 14, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated December 10, 2009, from Miriam Collom-Winters, City Clerk/Treasurer for the City of Hewitt. In her letter, Ms. Collom-Winters asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains.</p> <p>A summary of the facts as Ms. Collom-Winters provided them is as follows. Ms. Collom-Winters stated, verbatim:</p> <p class="opinion_quote">1. City Council held several closed sessions, discussing preliminary allegations of a person subject to council authority.</p> <p class="opinion_quote">2. Resulting from those sessions, a City employee was ultimately terminated.</p> <p class="opinion_quote">3. No person, other than the City Council Members and, at times, the City Attorney, was present for the closed sessions.</p> <p class="opinion_quote">4. The sessions were audio recorded, as required by law.</p> <p class="opinion_quote">5. There may or may not be litigation arising from the ultimate termination.</p> <p class="opinion_quote">Based on these facts, at what point, if ever, [do] the audio recordings of closed sessions become a matter of public record?</p> <hr /> <h2>Issue:</h2> <p>Based on Ms. Collom-Winters's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by the City of Hewitt: audio recordings of closed public meetings?</p> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, Chapter 13D, the Open Meeting Law, requires that public bodies close meetings when discussing certain types of not public data but also prohibits public bodies from closing meetings when discussing all other types of not public data: "Except as provided in this chapter, meetings may not be closed to discuss data that are not public data." (Section 13D.05, subdivision 1(a).)</p> <p>Minnesota Statutes, Chapter 13D, also requires that public bodies electronically record most closed meetings and maintain the recordings:</p> <p class="opinion_quote">All closed meetings, except those closed as permitted by the attorney-client privilege, must be electronically recorded at the expense of the public body. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting.</p> <p>(Minnesota Statutes, section 13D.05, subdivision 1(d).)</p> <p>Ms. Collom-Winters asked about the classification of data in audio recordings of closed meetings of public bodies and if they become public at some point in time. The provisions of Chapter 13 set forth how the data are classified.</p> <p>In many situations when a public body is required to close a meeting to discuss not public data, the data become public only after 30 plus years. (Section 13.10, data on decedents.) An example is a school board closing a meeting to discuss student educational data that are private pursuant to Minnesota Statutes, section 13.32. The data in the recording are accessible only to the data subject but will become public at a particular time after the individual's death.</p> <p>There are other situations when the classification of not public data in a recording of a closed meeting likely will change in a relatively short period of time. For example, if a city closes a meeting to discuss active criminal investigative data (Minnesota Statutes, section 13.82, subdivision 7), the data in the recording are confidential/protected nonpublic. However if, during the time the City retains a copy of the recording, the investigation's status changes to inactive, some or all of the data become public.</p> <p>Another example is when a city closes a meeting to discuss allegations or charges against an employee pursuant to section 13D.05, subdivision 2(b). Generally, the data in the recording are private personnel data under section 13.43, subdivision 4, and accessible to the data subject, but not to the public. (See also section 13D.01, subdivision 6, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>.) However, at some point in time, some or all of the data may become public pursuant to section 13.43, subdivision 2. For instance, if the employee is disciplined and there is a final disposition (section 13.43, subdivision 2(b)), certain data become public (section 13.43, subdivision 2(a)(5)). If the data in the recording are the type classified as public pursuant to section 13.43, the public can gain access to those data.</p> <p>Ms. Collom-Winter described a situation in which an employee was terminated. Prior to there being a final disposition pursuant to section 13.43, subdivision 2(b), only the fact that a complaint/charge exists and its status are public. Once a final disposition occurs, additional data become public (section 13.43, subdivision 2(a)(5)). Generally, final disposition occurs in a shorter amount of time if the employee is not covered by a collective bargaining agreement (section 13.43, subdivision 2(b)). Here, Ms. Collom-Winters did not state whether the employee is or is not covered by a collective bargaining agreement and whether a final disposition has occurred.</p> <p>Finally, government entities need to keep in mind it is possible that some recordings may contain both public and not public data, and must be redacted appropriately upon a data request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Collom-Winters raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Data in audio recordings of public meetings closed to discuss preliminary allegations against an employee are classified pursuant to Minnesota Statutes, section 13.43. The fact that a complaint/charge exists and its status are public. Regarding the remainder of the recording, the Commissioner cannot determine with certainty the classification because she does not know if a final disposition has occurred.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: January 26, 2010.</p> <hr /></td> </tr> </tbody> </table> </div>2677452666482666492022-01-18T19:35:31Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267090" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-12-21T16:14:43ZDid the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data made on September 15 and October 15, 2009? December 21, 2009; City of Palisade36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On November 18, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Carol Morris. In her letter, Ms. Morris asked the Commissioner to issue an advisory opinion regarding her right to access certain data from the City of Palisade.</p> <p>IPAD, on behalf of the Commissioner, wrote to Gaylene Spolarich, City Clerk, in response to Ms. Morris's request. The purposes of this letter, dated November 23, 2009, were to inform her of Ms. Morris's request and to ask her to provide information or support for the City's position. IPAD did not receive a response from the City.</p> <p>A summary of the facts as Ms. Morris provided them is as follows. In a letter dated September 15, 2009, Ms. Morris wrote to the City and requested certain data:</p> <p class="opinion_quote">1. The data that documents the cashing of the $25,000 CD, such as but not limited to the deposit slip.</p> <p class="opinion_quote">2. The data that documents the purchase of the fire rescue truck from the Watertown Fire Department, such as but not limited to the cancelled check.</p> <p class="opinion_quote">3. The data that documents the income from the Palisade fire protection, such as but not limited to the deposit slip(s).</p> <p class="opinion_quote">4. The data that documents reinvestment of the $25,000 CD that was cashed in, such as but not limited to the cancelled check.</p> <p>Ms. Morris again requested the data in a letter dated October 15, 2009.</p> <p>In her opinion request, Ms. Morris wrote, "I have not received any data from the City of Palisade."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Morris's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p class="opinion_quote"> </p> <p>Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data made on September 15 and October 15, 2009?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (Section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such that the requestor cannot have access, or inform the requestor that the data do not exist.</p> <p>Here, the City provided no response to Ms. Morris and therefore is not in compliance with Chapter 13.</p> <p>In addition, given the nature of the data Ms. Morris requested, it is likely some of them are official records. Minnesota Statutes, section 15.17, requires government entities to create official records and maintain them for time periods prescribed in an entity's record retention schedule (Minnesota Statutes, section 138.17). Section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.</p> <p>In 2008, the Commissioner issued an advisory opinion involving the same parties involving a similar issue. In that opinion, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267846" title="08-026" target="_blank">08-026</a>, the Commissioner also concluded that the City had not complied with Chapter 13, and likely was not in compliance with section 15.17. The Commissioner encourages the City to work to improve its handling of data practices matters.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Morris raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Palisade did not comply with Minnesota Statutes, Chapter 13, in regard to a request for data made on September 15 and October 15, 2009.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: December 21, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2670902663002022-01-19T19:18:04Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267942" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-12-15T16:15:43ZDid the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data relating to checks issued by Northern Minnesota Power Agency to City officials? Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a document the Mayor used at a March 18, 2009, meeting? Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a 49 page investigative report?December 15, 2009; City of Warren36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On November 5, 2009, the Information Policy Analysis Division (IPAD) received a letter dated October 30, 2009, from C.T. Marhula. In his letter, Mr. Marhula asked the Commissioner to issue an advisory opinion regarding his right to certain data from the City of Warren.</p> <p>IPAD, on behalf of the Commissioner, wrote to Nancy Holum, Deputy Clerk of the City, in response to Mr. Marhula's request. The purposes of this letter, dated November 17, 2009, were to inform her of Mr. Marhula's request and to ask her to provide information or support for the City's position. IPAD did not receive a response from the City.</p> <p>A summary of the facts as Mr. Marhula provided them is as follows. In a letter to the City dated September 17, 2009, Mr. Marhula requested certain data:</p> <p class="opinion_quote">1. Copies of checks and supporting documents issued by the Northern Minnesota Power Agency (NMPA) issued to Mr. Todd Hanson, former City of Warren Operations Supt., and Mayor Robert Kliner for the period from January 1, 2008, to June 30, 2009.</p> <p class="opinion_quote">2. Copies of the document used by Mayor Kliner at the March 18, 2009, meeting.</p> <p class="opinion_quote">3. An electronic copy of the 49 page document and all attachments referred to on page 2 of Mayor Kliner's January 7, 2009, letter to me.</p> <p>In a letter dated September 25, 2009, an attorney responded on the City's behalf:</p> <p class="opinion_quote">- [Regarding number 1] The City does not have data responsive to this request.</p> <p class="opinion_quote">- [Regarding number 2] Data responsive to this request will be transmitted to you by email. The City denies your request for datahat is nonpublic and not accessible to you based on Minnesota Statutes, section 13.393 [attorney data]. The portion of the document that is prohibited from being disclosed to you will be transmitted with the appropriate redactions. More specifically, in the applicable document, the data prohibited from being disclosed to you is such data in which the City did not waive the attorney-client privilege, i.e., data that the City did not communicate to a third party</p> <p class="opinion_quote">- [Regarding number 3] The City denies your request for dataased on Minnesota Statutes, section 13.39 [civil investigative data].</p> <p>Mr. Marhula provided to the Commissioner a copy of the redacted document he received from the City in regard to his Number 2 request.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Marhula's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data relating to checks issued by Northern Minnesota Power Agency to City officials?</li> </ol> <ol start="2" type="1"> <li>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a document the Mayor used at a March 18, 2009, meeting?</li> </ol> <ol start="3" type="1"> <li>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a 49 page investigative report?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data relating to checks issued by Northern Minnesota Power Agency to City officials?</em></p> <p>Data that government entities create, collect, and maintain are subject to the requirements of Minnesota Statutes, Chapter 13.</p> <p>In his opinion request, Mr. Marhula wrote:</p> <p class="opinion_quote">There are reasons this information is covered under [Chapter 13]. First, Mr. Hanson and Mr. Kliner were acting as appointed agents for the City of Warren on the NMPA Board [Northern Minnesota Power Agency].The payments to them were in their official capacity of acting for and on behalf of the City This was an official and formal appointment by the action of the City Council of Warren.</p> <p>To his opinion request, Mr. Marhula attached a provision from a City document entitled, "Financial Statements for the Year Ended December 31, 2008 Together with Independent Auditor's Report." The provision reads:</p> <p class="opinion_quote">The City of Warren is a member of the Northern Municipal Power Agency. The Power Agency was incorporated on December 14, 1976, and is a municipal corporation and political subdivision of the State of Minnesota composed of 10 Minnesota cities. The Power Agency was organized for the purpose of providing its members with electrical power pursuant to Minnesota Statutes, Section 453.</p> <p>The City's response to Mr. Marhula is that it does not have data responsive to this request. Without knowing whether the City has some type of contractual relationship with NMPA that would require the City to maintain certain data, the Commissioner cannot determine whether the City's response is compliant with Chapter 13.</p> <h2>Issue 2:</h2> <p><em>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a document the Mayor used at a March 18, 2009, meeting?</em></p> <p>As discussed in the Facts section above, Mr. Marhula provided the Commissioner with a copy of the redacted document he received from the City. The City redacted the data pursuant to Minnesota Statutes, section 13.393, attorney data. In his opinion request, Mr. Marhula wrote:</p> <p class="opinion_quote">While I cannot [prove] it is not "attorney client" information without reviewing it, I can say it appeared to be a script the Mayor was reading from while other Council members were making the scripted statements. This was at an open, public meeting. This should be public information.I believe these notes were also used to prepare the minutes.</p> <p>Section 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267516" title="05-009" target="_blank">Advisory Opinion 05-009</a>)</p> <p>The Commissioner does not have enough information to determine whether the City appropriately withheld data from Mr. Marhula. Generally, though, it is likely not appropriate for an entity to discuss data in an open meeting and then refuse to release those data on the basis that they are attorney data.</p> <h2>Issue 3:</h2> <p><em>Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a 49 page investigative report?</em></p> <p>The City's response is that the data in the report are not public pursuant to Minnesota Statutes, section 13.39. As the Commissioner previously has opined, for data to be classified properly under section 13.39, the chief attorney acting for the entity must determine that a civil legal action is pending. The Commissioner does not know if this has occurred. If so, the City can appropriately deny access to the data. If not, the data are public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issues Mr. Marhula raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The Commissioner cannot determine whether the City of Warren complied with Minnesota Statutes, Chapter 13, in responding to a request for certain data relating to checks issued by Northern Minnesota Power Agency to City officials.</li> </ol> <ol start="2" type="1"> <li>The Commissioner cannot determine whether the City of Warren complied with Minnesota Statutes, Chapter 13, in responding to a request for a document the Mayor used at a March 18, 2009, meeting.</li> </ol> <ol start="3" type="1"> <li>The Commissioner cannot determine whether the City of Warren complied with Minnesota Statutes, Chapter 13, in responding to a request for a 49 page investigative report.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: December 15, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2679422022-01-19T19:18:04Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267266" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-12-15T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, does the public have a right to access government data regarding the specific standards and accomplishments that provide the basis for performance bonuses paid to individual public university presidents and other managers in the MnSCU system?December 15, 2009; Minnesota State Colleges and Universities36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On October 29, 2009, the Information Policy Analysis Division (IPAD) received a letter dated same, from Connie Howard, an attorney representing the Inter Faculty Organization (IFO). In her letter, Ms. Howard asked the Commissioner to issue an advisory opinion regarding the IFO's right to gain access to certain data from the Minnesota State Colleges and Universities (MnSCU).</p> <p>IPAD, on behalf of the Commissioner, wrote to James McCormick, Chancellor of MnSCU, in response to Ms. Howard's request. The purposes of this letter, dated November 5, 2009, were to inform him of Ms. Howard's request and to ask him to provide information or support for MnSCU's position. On November 25, 2009, IPAD received a response, dated same, from Kristine Kaplan, Deputy General Counsel for MnSCU.</p> <p>A summary of the facts as Ms. Howard presented them is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">The IFO has a dispute with [MnSCU] regarding [certain personnel data] that arises out of the union's request for not only the amount of performance bonuses paid to the presidents of the seven four-year universities within the MnSCU system, but also the basis for the payment of the bonuses. It is the union's position that [Minnesota Statutes, section 13.43, subdivision 2(a)(1)] requires MnSCU to disclose the specific criteria upon which it based its decision to pay substantial performance bonuses to university presidents and other top level management in the MnSCU system.</p> <p>Ms. Howard noted that MnSCU provided "a list of examples of goals that could be considered in the awarding of performance bonuses, but [failed] to identify the specific basis for the performance bonuses awarded to each of the university presidents."</p> <p>Ms. Howard also noted that MnSCU provided an excerpt from a former Vice Chancellor's employment agreement:</p> <p class="opinion_quote">The Chancellor, in consultation with the Vice Chancellor, annually shall establish specific performance goals for the Vice Chancellor. Upon a determination by the Chancellor that the Vice Chancellor's annual performance review is satisfactory and that the Vice Chancellor has attained some or all of the specific performance goals established pursuant to this section, the Chancellor shall award to the Vice Chancellor a merit bonus of not less than $3,000 and not more than $15,000 for the prior year.</p> <p>In an October 27, 2009, letter, to Ms. Howard, Ms. Kaplan wrote:</p> <p class="opinion_quote">To the extent that your request may have included specific descriptions of individual employees' performance that resulted in a performance incentive or merit pay, we are unable to provide it because personnel evaluation information is private personnel data under [section 13.43, subdivision 4].</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Howard's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, does the public have a right to access government data regarding the specific standards and accomplishments that provide the basis for performance bonuses paid to individual public university presidents and other managers in the MnSCU system?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>Of relevance here, the following data about an employee's compensation are public: actual gross salary and the basis for and the amount of any added remuneration in addition to salary. (Section 13.43, subdivision 2(a)(1).)</p> <p>The question before the Commissioner is whether MnSCU must release more detailed information related to the performance bonuses it paid certain MnSCU employees.</p> <p>In <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/267791" title="03-008" target="_blank">Advisory Opinion 03-008</a>, the Commissioner wrote:</p> <p class="opinion_quote">It is the Commissioner's opinion that the Legislature intended to make public all of the various types of compensation afforded to public employees and to make public the basis for that compensation. A practical application suggests that each component of an employee's compensation fits into one of the categories the Legislature included in subdivision 2(a)(1). For purposes of this opinion, the commissioner will limit his remarks to a discussion of two categories: actual gross salary and added remuneration.</p> <p class="opinion_quote">It appears to the Commissioner that actual gross salary describes that portion of an employee's compensation which is fixed and paid on a regular basis. It follows that the basis for a change in an employee's actual gross salary also is public because the underlying reasons for any such change are public, e.g., a change in the contract of the employee's bargaining unit, a change in the employee's length of service, a change in the employee's job title.</p> <p class="opinion_quote">Data about any remuneration an employee receives in addition to his/her actual gross salary also are public. Added remunerations, as opposed to actual gross salary, are not necessarily fixed or regular, e.g., merit increases, overtime pay. In addition to the dollar amount of any added remuneration, a description of the type of remuneration also is public.</p> <p>In her comments to the Commissioner, Ms. Kaplan wrote:</p> <p class="opinion_quote">MnSCU provided the IFO with the requested salary and salary range information, and the amounts paid to each individual for performance or bonus pay. However, it was MnSCU's determination that the specific factors used to measure a particular administrator's performance evaluation constitute private personnel data under Minn. Stat. section13.43, subd. 4 and thus could not be provided. Instead, the IFO was provided a list of the types of factors used in determining eligibility for the incentive pay and the explanation that "[a] determination of whether and how much of that incentive is paid is based on the Chancellor's assessment of each individual's overall satisfactory performance and the specific goals identified for each performance review process.</p> <p>Pursuant to section 13.43, subdivision 2(a)(1), the basis for and the amount of any added remuneration in addition to salary are public. Section 13.43 does not define "basis for." Merriam Webster's Collegiate Dictionary, Tenth Edition, Merriam-Webster, Incorporated, 1996, defines "basis" as "something on which something else is established or based."</p> <p>As the Commissioner opined in <a href="https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/267791" title="03-008" target="_blank">03-008</a>, the Legislature intended to make public all of the various types of compensation afforded to public employees and to make public the basis for that compensation. In responding to the IFO's data request, MnSCU provided to IFO a list of examples of goals that MnSCU could consider in awarding performance bonuses, including:</p> <p class="opinion_quote">improvement in the second fall persistence and completion rate for underrepresented students; increasing the number of adult continuing education students; expansion of cost management or efficiency activities; expansion of private and/or alumni giving; increasing enrollments in specific programs or courses.</p> <p>Ms. Kaplan argues that a more detailed description of this category of added remuneration would require releasing "performance evaluation data." She also correctly highlights that "appellate courts have carefully guarded the privacy of employee evaluation information regardless of its form." The Commissioner agrees with Ms. Kaplan.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Howard raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the public does not have a right to access any additional data beyond what has already been provided regarding the specific standards and accomplishments that provide the basis for performance bonuses paid to individual public university presidents and other managers in the MnSCU system.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: December 15, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2672662665892022-01-19T19:18:04Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267283" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-11-30T16:14:43ZMinnesota Statutes, section 13.43, subdivision 2(a)(6), requires a government entity to include in a settlement agreement “specific reasons for the settlement agreement.” School District 625, Saint Paul, entered into a settlement agreement and received a request for the settlement agreement. Has the District provided to the requestor the “specific reasons for the settlement agreement”?November 30, 2009; School District 626 (Saint Paul)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On October 7, 2009, the Information Policy Analysis Division (IPAD) received a letter dated same, from Emily Johns, a reporter for the <em>Star Tribune</em>. In her letter, Ms. Johns asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from School District 625, Saint Paul.</p> <p>IPAD, on behalf of the Commissioner, wrote to Suzanne Kelly, Interim Superintendent of the District, in response to Ms. Johns's request. The purposes of this letter, dated October 16, 2009, were to inform her of Ms. Johns's request and to ask her to provide information or support for the District's position. On October 30, 2009, IPAD received a response, dated October 29, 2009, from Nancy Cameron, District Deputy General Counsel.</p> <p>Also in a letter dated October 16, 2009, IPAD invited John Krenik, the data subject, to provide comments. On November 4, 2009, IPAD received a response, dated November 3, 2009, from Anne Krisnik, an attorney representing Mr. Krenik.</p> <p>A summary of the facts as Ms. Johns provided them is as follows. In her opinion request she wrote:</p> <p class="opinion_quote">In response, I received [a settlement agreement for teacher John Krenik]. According to the agreement, the district paid Krenik $12,000 to quit his job [with the District].</p> <p class="opinion_quote">State statute 13.43, however, requires that agencies making such an agreement must include the specific reasons for it if it involves the payment of more than $10,000 of public money. The settlement with the St. Paul schools did not include specific reasons for Krenik's buyout, and subsequent requests I have made for that information have been denied by the school district.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Johns's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Minnesota Statutes, section 13.43, subdivision 2(a)(6), requires a government entity to include in a settlement agreement "specific reasons for the settlement agreement." School District 625, Saint Paul, entered into a settlement agreement and received a request for the settlement agreement. Has the District provided to the requestor the "specific reasons for the settlement agreement"?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>In a situation where someone has complained about an employee, the fact that a complaint exists and the status of the complaint are public. (Section 13.43, subdivision 2(a)(4).) If the government entity has taken disciplinary action and a final disposition has occurred, the final disposition together with the specific reasons for the action and data documenting the basis for the action are public. (Section 13.43, subdivision 2(a)(5).)</p> <p>Section 13.43, subdivision 2(b), describes the point in time when a final disposition occurs.</p> <p>In addition, the following data are public pursuant to section 13.43, subdivision 2(a)(6):</p> <p class="opinion_quote">the terms of any agreement settling any dispute arising out of an employment relationship except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money.</p> <p>In her comments to the Commissioner, Ms. Cameron wrote:</p> <p class="opinion_quote">What the legislature meant by "specific reasons" is unclear. Neither the courts nor Commissioner have addressed this language.</p> <p class="opinion_quote">The District maintains that the phrase-"specific reasons for the agreement"-means explanation sufficient to show that payment was not a gift under the guise of a compromise.</p> <p class="opinion_quote">The District also interprets the "specific reasons for the agreement" to mean written (or otherwise recorded) terms of the agreement. The terms show what the parties bargained for, compromised and settled, and what they gained in return. The terms set forth the consideration of the $12,000. The terms show that payment of public money was not a "gift" but was a proper expenditure of public funds to compromise a claim.</p> <p class="opinion_quote">The specific reasons for the settlement (and the payment of the $12,000) are provided throughout the 17-page Settlement Agreement (which includes the releases).</p> <p>Ms. Cameron then listed some of the "specific reasons" that are contained in the settlement agreement:</p> <p class="opinion_quote">- The Recitals indicate District, Employee, and Union wish to settle all matters arising out of Employee's employment with the District The parties also agreed that the Agreement is a compromise of claims the parties wish to settle all maters [sic] and to compromise claims, there must be disputes and claims to settle. Furthermore, the Agreement's terms indicate some of the areas of dispute. E.g., charges grievances and arbitration continued and future employment handling of employment records complaint/request for opinion to the Commissioner of Administration.</p> <p class="opinion_quote">- The Consideration from Employee and Union further details the specific reasons for the agreement.</p> <p class="opinionquoteinquote">o The District obtained Employee's resignation</p> <p class="opinionquoteinquote">o The District obtained a general release and waiver of all claims by Employee arising out of the employment relationship</p> <p class="opinionquoteinquote">o The District obtained a full release and waiver of claims by Employee under the Age Discrimination in Employment Act</p> <p class="opinionquoteinquote">o Employee and Union withdr[e]w all grievances and potential grievances to date [of the Settlement Agreement].</p> <p class="opinionquoteinquote">o Similarly, the District obtained dismissal of [the Union's and Employee's] arbitration request.</p> <p class="opinionquoteinquote">o Employee withdr[e]w his request for opinion to the Commissioner of Administration regarding the District's or its employee's handling of data under the Minnesota Government Data Practices Act.</p> <p>The settlement agreement also contains language detailing the consideration given from the District to Mr. Krenik, including that the payment of $12,000 and that a District employee will withdraw charges filed against Mr. Krenik.</p> <p>In her comments to the Commissioner on behalf of Mr. Krenik, Ms. Krisnik wrote that the specific reasons for the settlement agreement are contained within the document:</p> <p class="opinion_quote">Paragraphs 1 and 3 of the Agreement list the specific reasons the School District entered it. The specific reasons are referred to by the parties by the legal term: "consideration."</p> <p class="opinion_quote">The "consideration" received by the School District from Mr. Krenik and the Union is specified in Paragraph 1 of the Agreement and its sub-paragraphs.</p> <p class="opinion_quote">This same consideration received by the School District is further reflected in the introductory sentence to Paragraph 3 of the Agreement which provides, in relevant part:</p> <p class="opinionquoteinquote">In consideration for Employee's resignation, execution of this Agreement, General Release and Waiver of Claims, and the ADEA release, and compliance with the promises made therein, district agrees</p> <p>The Commissioner agrees with Ms. Cameron and Ms. Krisnik - that what they consider to be the specific reasons for the agreement are what section 13.43, subdivision 2(a)(6), contemplates as such. Section 13.43 does not define "specific reason." <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines "specific" as "free from ambiguity: accurate" and defines "reason" as "a statement offered in explanation or justification." Here, the settlement agreement contains the reasons for the agreement.</p> <p>In her comments to the Commissioner, Ms. Cameron wrote that she had asked Ms. Johns what more [Ms. Johns] thought should have been included in the agreement so that it included, from [Ms. Johns's] perspective, the specific reasons for the agreement:</p> <p class="opinion_quote">Ms. Johns believes that the agreement should contain the substantive basis for the complaint or charge to show, for example, why the employer wanted the employee to resign. The District disagrees with Ms. Johns' conclusion.</p> <p class="opinion_quote">Under Minn. Stat. section 13.43, subd. 2, the existence and status of complaints and charges against the employee are public data, but the substance of those charges is not. When employers and employees settle employment disputes before an arbitration decision is reached or before the final disposition of any disciplinary action, only the existence of any complaint or charges and the status of the complaints or charges (i.e., resolved without disciplinary action) are public.</p> <p class="opinion_quote">If employers were required to put in settlement agreements details about the substance of the complaint or charge, private personnel data that would normally be available to the public only <u>after</u> the final disposition would be available before such action.</p> <p>Based on the information provided to the Commissioner, here, a final disposition did not occur. Therefore, pursuant to the language in section 13.43, only the following data are public: the fact that a complaint or charge exists and the status of the complaint or charge, and the terms of the settlement agreement.</p> <p>The Commissioner notes that the District and Mr. Krenik could have agreed to include in the settlement agreement additional information related to the dispute that otherwise are not public. As terms of the agreement, those data would then be public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue that Ms. Johns raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>School District 625, Saint Paul has provided to the public the "specific reasons for the settlement agreement."</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: November 30, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2672832665572022-01-19T19:18:03Z266258513982266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267646" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-11-23T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data submitted by employers to the Minnesota Department of Labor and Industry as part of applying for a Safety Grant? November 23, 2009; Minnesota Department of Labor and Industry36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On October 2, 2009, the Information Policy Analysis Division (IPAD) received a letter dated September 30, 2009, from Mary Miller, General Counsel for the Minnesota Department of Labor and Industry (DLI). In her letter, Ms. Miller asked the Commissioner to issue an advisory opinion regarding the classification of certain data DLI maintains.</p> <p>A summary of the facts Ms. Miller provided is as follows. She wrote in her opinion request that DLI had received a request regarding the status of certain "financial data submitted to DLI as part of the Department's Safety Grant application process." She stated:</p> <p class="opinion_quote">The financial documents that are submitted include a wide variety of financial documents. They may include tax returns, balance sheets, income and expense projections, business plans, profit-loss statements, and annual report financial documents.</p> <p>Ms. Miller wrote that Minnesota Statutes, section 79.253, authorizes the Commissioner of Labor and Industry to make grants or loans to employers for the cost of implementing safety recommendations. (Section 79.253, subdivision 4.)</p> <p>Ms. Miller also wrote that Minnesota Rules Chapter 5203 were promulgated to implement the Safety Grant Program. Subpart 2 of Part 5203.0060 lists the information that must be contained in an applicant's proposal. Subpart 3 of Part 5203.0060 discusses the criteria the Commissioner of Labor and Industry should use to evaluate each proposal. Part 5203.00500 discusses certain information that must be included in a grant agreement.</p> <p>Ms. Miller asked the Commissioner to issue an opinion regarding how the data in question are classified.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Miller's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data submitted by employers to the Minnesota Department of Labor and Industry as part of applying for a Safety Grant?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>As Ms. Miller noted in her opinion request, there are two provisions in Chapter 13 that entities can use to classify grant data. A comparison of these two provisions reveals that the amount and type of grant-related data a state agency must make public differs depending upon whether the agency classifies its data pursuant to Minnesota Statutes, section 13.591 or Minnesota Statutes, section 13.599. Section 13.591 (subdivisions 1 and 2), classifies data submitted to a government entity by a business that requests financial assistance or a benefit financed by public funds. When grant data are classified under section 13.591, certain financial data about applicants are not public:</p> <p class="opinion_quote">financial information about the business, including credit reports; financial statements; net worth calculations; business plans; income and expense projections; balance sheets; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>(Section 13.591, subdivision 1)</p> <p>When a business receives financial assistance or a benefit, the following financial data remain not public:</p> <p class="opinion_quote">business plans; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds</p> <p>(Section 13.591, subdivision 2.)</p> <p>The not public financial data about applicants that do not receive financial assistance or a benefit remain not public.</p> <p>The other provision entities can use to classify grant data is section 13.599, which classifies grant data in situations where the granting agency has put out a request for proposal (RFP). Section 13.599 applies only to state agencies. Subdivision 3 of section 13.599 classifies data in responses to a request for proposal. Clause (a) states:</p> <p class="opinion_quote">Responses submitted by a grantee are private or nonpublic until the responses are opened. Once the responses are opened, the name and address of the grantee and the amount requested is public. All other data in a response is private or nonpublic data until completion of the evaluation process. After a granting agency has completed the evaluation process, all remaining data in the responses is public with the exception of trade secret data as defined and classified in section 13.37hellip;.</p> <p>Clause (b) of section 13.599, subdivision 3, states:</p> <p class="opinion_quote">If all responses are rejected prior to completion of the evaluation process, all data, other than that made public at the opening, remain private or nonpublic until a resolicitation of proposals results in completion of the evaluation process or a determination is made to abandon the grant. If the rejection occurs after the completion of the evaluation process, the data remain public. If a resolicitation of proposals does not occur within one year of the grant opening date, the remaining data become public.</p> <p>Upon examining section 13.591 (subdivisions 1 and 2) and 13.599, it is clear that section 13.599 contemplates a very structured request for proposal, evaluation, and selection process whereas section 13.591 does not necessarily do so. Because the DLI grant proposal and evaluation process, as outlined in Minnesota Rules Chapter 5203, is very specific, including requiring DLI to publish a detailed notice in the state register that contains a deadline by which proposals must be submitted, the Commissioner is of the opinion that the Safety Grant data are appropriately classified pursuant to section 13.599.</p> <p>In analyzing Ms. Miller's question, it is apparent that issues related to the classification of government grant data would benefit from further legislative clarification. Sections 13.591 and 13.599 classify data differently and there is no apparent reason for the difference.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Miller raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Data submitted by employers to the Minnesota Department of Labor and Industry as part of applying for a Safety Grant are classified pursuant to Minnesota Statutes, section 13.599.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: November 23, 2009</p> <hr /> </td> </tr> </tbody> </table> </div>2676462666802667442022-01-19T19:18:03Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267824" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-09-22T15:14:43ZDid the City of Saint Paul comply with Chapter 13 in response to a March 27, 2009 (and subsequent), request for access to “all policies and procedures governing the duties of the St. Paul Intervention Project, Inc., to include all employee manuals and/or handbooks, volunteer manuals, training manuals, daily procedures, mission statements, and employee and volunteer rosters and records?”September 22, 2009; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong> <br /></p> <h2>Facts and Procedural History: <br /></h2> <p>On August 4, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated August 3, 2009, from Evan Tsai, on behalf of the Office of the Public Defender, Second Judicial District. In his letter, Mr. Tsai asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data from the City of Saint Paul. IPAD requested clarification, which Mr. Tsai provided on August 7, 2009.</p> <p>IPAD, on behalf of the Commissioner, wrote to Shari Moore, City Clerk, in response to Mr. Tsai's request. The purposes of this letter, dated August 11, 2009, were to inform her of Mr. Tsai's request and to ask her to provide information or support for the City's position. Gail L. Langfield, Assistant City Attorney, responded, in a letter dated August 26, 2009.</p> <p>A summary of the facts follows. The Saint Paul Domestic Abuse Intervention Project ("Project") is a recipient of a grant from the City (among other funding sources.) According to documents provided by Mr. Tsai and Ms. Langfield, the City and the Project entered into a contract, Agreement #02-14801-G ("Agreement"), which states:</p> <p class="opinion_quote">The contract period shall be:</p> <p class="opinion_quote">1) January 1, 2008 through December 31, 2008 for General Fund financing; and</p> <p class="opinion_quote">2) July 1, 2008 through June 30, 2009 for financing from the Community Development Block Grant funds.</p> <p>In letters dated March 27, 2009, and July 22, 2009, Mr. Tsai wrote to Ms. Moore and requested access to the following data: "all policies and procedures governing the duties of the [Project], to include all employee manuals and/or handbooks, volunteer manuals, training manuals, daily procedures, mission statements, and employee and volunteer rosters and records." (Mr. Tsai also requested additional data, which the City provided to him.) He stated, "I am not requesting data regarding individual clients served by" the Project.</p> <p>According to Ms. Langfield, "[a]t some point . . . Ms. Moore told Mr. Tsai that the City has not collected or received any data which is responsive."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Tsai's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Saint Paul comply with Chapter 13 in response to a March 27, 2009 (and subsequent), request for access to "all policies and procedures governing the duties of the St. Paul Intervention Project, Inc., to include all employee manuals and/or handbooks, volunteer manuals, training manuals, daily procedures, mission statements, and employee and volunteer rosters and records?"</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>Pursuant to Minnesota Statutes, section 13.05, subdivision 11:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>In their comments to the Commissioner, Mr. Tsai asserted that (for various reasons) the City must provide him with access to the requested data; Ms. Langfield wrote, "[t]he only obligation the City has is to provide access to the data in its own possession."</p> <p>In support of the City's position, Ms. Langfield cited a Minnesota appellate court case, <em>WDSI, Inc. v. The County of Steele</em>, 672 N.W.2d 617 (Minn. App. 2003). The Court's analysis relied upon the fact that the contract between Steele County and the private contractor did not contain the language required by Minnesota Statutes, section 13.05, subdivision 11, which is not the case here. Accordingly, WDSI is not applicable.</p> <p>Specifically, Section 6 of the Agreement between the City of St. Paul and the Project contains the following provisions of relevance here:</p> <p class="opinion_quote">A. "Work product" shall mean any report, recommendation, paper, presentation, drawing, demonstration, or other materials, whether in written, electronic or other format, that results from [the Project's] services under this Agreement.</p> <p class="opinion_quote">"Supporting documentation" shall mean any surveys, questionnaires, notes, research papers, and analyses, whether in written, electronic or in other format, and other evidences used to generate any and all work performed and work products generated under this Agreement.</p> <p class="opinion_quote">B. All deliverable work products and supporting documentation that result from [the Project's] services under this Agreement shall be delivered to the City and shall become the property of the City after final reimbursement is made to the [Project] with no right, title, or interest in said work products or supporting documentation vesting in [the Project.]</p> <p class="opinion_quote">C. The [Project] agrees not to release, transmit, or disseminate information associated with, or generated as a result of, the work performed under this Agreement without the City's prior knowledge and written consent.</p> <p class="opinion_quote">F. [The Project] agrees to abide strictly by Chapter 13, Minnesota Government Data Practices Act, and in particular, Minnesota Statute section13.05, subd. 6 and 11; and 13.37, subd. 1(b) and Minnesota Statute section138.17 and 15.17. All of the data created, collected, received, stored, used maintained, or disseminated by the [Project] in performing functions under this Agreement is subject to the requirements of the Minnesota Government Data Practices Act and [the Project] must comply with those requirements as if it were a governmental entity. The remedies in Minnesota Statutes apply to the [Project.] If any provision of this Agreement is in conflict with the Minnesota Government Data Practices Act or other Minnesota state laws, state law will control.</p> <p class="opinion_quote">According to the timeframe in the contract, the final term expired on June 30, 2009. According to Section 6 (B) of the agreement, all "deliverable work products and supporting documentation . . . shall be delivered to the City and shall become the property of the City after final reimbursement . . . ."</p> <p>Thus, it appears that under the terms of the Agreement, the Project was obligated to provide the City with all deliverable work products and supporting documentation that resulted from the Project's services. It is reasonable to assume that under the terms of the Agreement, the Project would create, maintain, etc., at least some of the kinds of data Mr. Tsai requested, in order to meet its obligations under Minnesota Statutes, sections 15.17 and 138.17, as set forth in Section 6 (F.) of the Agreement.</p> <p>Per clause C of the Agreement, the Project may not release any data "without the City's prior knowledge and written consent." Accordingly, under the process the City created through the Agreement, the City is ultimately responsible for providing or authorizing appropriate access to any data resulting from its contract with the Project.</p> <p>It appears the City ought to be in possession of the data described under Section 6 as "work product or supporting documentation." Therefore, if any of those data are responsive to Mr. Tsai's request, then the City must gain possession of the data, determine how the data are classified, and make them available to Mr. Tsai. In the alternative, the City could give its written consent to the Project to provide Mr. Tsai with access. If the Project did not create any government data responsive to Mr. Tsai's request under the terms of the Agreement, the City should so inform him.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue that Mr. Tsai raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Saint Paul did not comply with Chapter 13 in response to a March 27, 2009 (and subsequent), request for access to "all policies and procedures governing the duties of the St. Paul Intervention Project, Inc., to include all employee manuals and/or handbooks, volunteer manuals, training manuals, daily procedures, mission statements, and employee and volunteer rosters and records."</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 22, 2009</p> <hr /> </td> </tr> </tbody> </table> </div>2678242662802662812022-01-19T19:18:03Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267142" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-09-14T15:14:43ZDid the University of Minnesota comply with Minnesota Statutes, Chapter 13, in denying access to data contained in the applications of students who apply for the University’s Student Services Fee Committee?September 14, 2009; University of Minnesota36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On July 24, 2009, the Information Policy Analysis Division (IPAD) received a letter dated July 23, 2009, from Jesse Berglund, an attorney representing Sean Niemic. In his letter, Mr. Berglund asked the Commissioner to issue an advisory opinion regarding Mr. Niemic's right to gain access to certain data from the University of Minnesota.</p> <p>IPAD, on behalf of the Commissioner, wrote to Tracy Smith, Associate General Counsel of the University, in response to Mr. Berglund's request. The purposes of this letter, dated August 5, 2009, were to inform her of Mr. Berglund's request and to ask her to provide information or support for the University's position. On August 26, 2009, IPAD received a response, dated same, from Ms. Smith.</p> <p>A summary of the facts as Mr. Berglund provided them is as follows. In his opinion request, Mr. Berglund noted that Mr. Niemic is a student at the University and a member of the Minnesota Student Association (MSA) - the undergraduate student governance body at the Twin Cities campus of the University. Mr. Berglund also stated that Mr. Niemic is a reporter/employee of the Minnesota Republic Newspaper.</p> <p>In both his role as MSA member and newspaper reporter/employee, Mr. Niemic requested the applications for all 58 student applicants for the University's Student Services Fee Committee. The University denied both of Mr. Niemic's requests stating that the data in the applications are private data under Minnesota Statutes, section 13.32, educational data.</p> <p>Mr. Berglund provided a copy of a Student Services Fees Committee application. Applicants are asked to provide their name, year in school, address, phone number, and email address. In addition, applicants are asked to answer the following questions:</p> <p class="opinion_quote">- Are you currently, or have you been in the past, a member of any student organization or administrative units that receive student services fees? If so, please list them, as well as any leadership positions held in these organizations.</p> <p class="opinion_quote">- Please list other activities in which you are currently involved. State the amount of time per week devoted to each activity and positions held.</p> <p class="opinion_quote">- What do you hope to gain from being a member of the fees committee?</p> <p class="opinion_quote">- What experiences working with financial matters and activities do you have that would benefit the committee's performance?</p> <p class="opinion_quote">- What experiences do you have that would assist the committee?</p> <p>In his opinion request, Mr. Berglund discussed the Fee Committee:</p> <p class="opinion_quote">The Fee Committee is established by the Board of Regents for the University of Minnesota on each campus of the University, with the purpose of annually reviewing and recommending the student service fee. Generally, the Fee Committee has reviewed and recommended funding for a variety of functions, including operations of the student unions, campus health services, the University Recreation Center, and many student groups.</p> <p class="opinion_quote">The Fee Committee for the Twin Cities Campus is composed of 15 at-large student members who are selected by a [Student Members Selection Committee]. The Student Members Selection Committee is composed of two students appointed by the [MSA] and two students from the Graduate and Professional Student Assembly [GAPSA], which is the graduate and professional student governing body for the Twin Cities campus. The Student Members Selection Committee reviews applications and also conducts interviews The Student Members Selection Committee then, in practice, recommends a slate of students for the Fee Committee to MSA and GAPSA who both confirm the slate of students.</p> <p class="opinion_quote">Among student governing bodies, the Fee Committee is among the most influential at the University, due to its power to review and recommend funding for student groups at the University. Currently, 45 groups, including three administrative units receive money through student service fees on the Twin Cities campus, with total funding for the 2008-2009 academic year in excess of $24 million. This is computed as a fee of about $350 per semester per fee-paying student, which is mandatory for any student enrolled for more than six credits each semester, or three credits in the summer.</p> <p class="opinion_quote">The University also recognizes the importance of the Fee Committee by paying each committee member a stipend for serving on the Fee Committee in the amount of $500 for general members, $600 for subcommittee chairs, and $750 for the committee chair.</p> <p>In his opinion request, Mr. Berglund argued that certain data about the Fee Committee applicants should be public pursuant to Minnesota Statutes, section 13.601, subdivision 3 (applicants for appointment) or because they are public directory information (Minnesota Statutes, section 13.32, subdivision 5).</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Berglund's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the University of Minnesota comply with Minnesota Statutes, Chapter 13, in denying access to data contained in the applications of students who apply for the University's Student Services Fee Committee?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Data about students are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, data about students are private and may not be released without consent. (Minnesota Statutes, section 13.32, subdivision 3.)</p> <p>One of the exceptions noted above is that any data a public educational institution chooses to designate as directory information pursuant to the provisions of FERPA are public. (Section 13.32, subdivision 5.) Under the federal regulations, "directory information" means "information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." (34 C.F.R. section 99.3.)</p> <p>In her comments to the Commissioner, Ms. Smith wrote that pursuant to state and federal law, the applicant data are private educational data. She then listed the types of data the University has designated as directory information and argued that the data Mr. Niemic seeks are not public directory information:</p> <p class="opinion_quote">Directory information shall mean the student's name, address, electronic (e-mail) address, telephone number, dates of enrollment, enrollment status (full-time, part-time, not enrolled, withdrew, and date withdrawn), major, adviser, college, class, academic awards and honors received, and, upon graduation, the degree awarded.</p> <p class="opinion_quote">This definition [of directory information] does not include application for membership on the student fees committee. The information [Mr. Niemic seeks] therefore is not directory information.</p> <p class="opinion_quote">Mr. Niemic argues that he is only looking for the "directory information" concerning the applicants. Mr. Niemic, however, is asking for the identities of applicants who unsuccessfully applied for appointment to the committee - and it is the fact of their application that is private. name, address, phone number, and email - which are [sic] appear on the application - may be directory information, but when they are asked for in a context that would reveal private information (e.g., Who received financial aid? Who unsuccessfully applied for admission to the University? Who applied for membership on the student fees committee?), the information is private educational data.</p> <p>The Commissioner agrees with Ms. Smith. Pursuant to the University's current designation of data to be directory information (public), the data at issue in this opinion are not directory information.</p> <p>In his opinion request, Mr. Berglund argued that some of the application data are public pursuant to Minnesota Statutes, section 13.601, subdivision 3, applicants for appointment. This subdivision classifies certain applicant data as public and makes additional data public once the individual is appointed to a public body.</p> <p>However, educational data ultimately are controlled by FERPA; the Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations. Because FERPA does not contain an exception allowing for release of data when students apply to and are appointed to a public body of their educational institution, and because the University has chosen not to designate these types of data as directory information, the data in question are private and cannot be released without consent.</p> <p>The Commissioner notes the following: The data about Fee Committee applicants who unsuccessfully applied are considered not public; likewise, data for those successful applicants are also considered not public and should only be released with written consent.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issue that Mr. Berglund raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The University of Minnesota complied with Minnesota Statutes, Chapter 13, in denying access to data contained in the applications of students who apply for the University's Student Services Fee Committee.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 14, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2671422662742022-01-19T19:18:03Z266258266282266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267446" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-09-08T15:14:43ZIs the Advisory Board for the Metro Gang Strike Force a public body that must comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D? Did the members of the Advisory Board for the Strike Force comply with the OML when they exchanged certain email messages relating to the activities of the Strike Force?September 8, 2009; Metro Gang Strike Force Advisory Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 26, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated May 22, 2009, from John Borger, an attorney. In his letter, Mr. Borger asked the Commissioner, on behalf of his client, the Star Tribune, to issue an advisory opinion on whether the Metro Gang Strike Force (MGSF) Advisory Board had violated the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Mr. Borger submitted the $200.00 fee required by section 13.072.</p> <p>The Commissioner accepted Mr. Borger's request and in a letter to Manila Shaver, MGSF Advisory Board Chair, notified Mr. Shaver of her intent to issue the opinion and gave the members of the Board an opportunity to explain their position. Mr. Shaver replied, in a letter dated June 11, 2009. Subsequently, the Commissioner notified Mr. Borger and Mr. Shaver that she would not issue an opinion because the MGSF had been dissolved. (The Commissioner refunded Mr. Borger's fee.)</p> <p>Mr. Borger asked the Commissioner to reconsider her decision, because the Board was still in operation, even though the MGSF was not. The Commissioner agreed, and Mr. Borger resubmitted his request on July 17, 2009, along with the $200.00 fee.</p> <p>In response, IPAD notified Mr. Shaver that the Commissioner intended to issue this opinion, in a letter dated July 27, 2009, and again gave the members of the Board an opportunity to explain their position. Mr. Shaver responded again, in a letter dated August 12, 2009.</p> <p>The Commissioner also invited Rodney Bartsh, Chair of the Gang and Drug Oversight Council, which oversees the Board, to submit comments. Mr. Bartsh did not provide any comments. A summary of the facts follows.</p> <p>The MGSF and its Advisory Board were established by the Gang and Drug Oversight Council, as part of its duty to "establish multijurisdictional task forces and strike forces to combat gang and drug crime." (See section 299A.641, subdivision 3.) The MGSF was organized as a joint powers entity, whose 13 Advisory Board members are the chief law enforcement officers, or their designees, of all parties to the Joint Powers Agreement. (See MGSF Advisory Board Bylaws, Section IV.)</p> <p>On April 7, 2009, a Star Tribune editorial writer sent an email to (then) MGSF Assistant Commander James Heimerl, seeking his perspective on an issue that was the subject of an April 5, 2009, newspaper article, about which she intended to write an editorial. She asked for a response by the following afternoon "for deadline purposes."</p> <p>According to documentation Mr. Borger provided, at 1:40 p.m. on April 8, Deputy Chief Rob Allen of the Minneapolis Police Department sent an email, with an attached letter, to Mr. Shaver and 33 others, including all Advisory Board members/member-designees. In the email, which Mr. Allen addressed to his 'colleagues,' he asked them to review the attached letter, stating '[t]here is some time critical information that I think can help prevent further issue with MGSF operations if we act quickly enough.' In the letter, Mr. Allen raised several issues and wrote, "I would like the board to consider issuing a statement similar to" a paragraph he drafted and included.</p> <p>According to copies of the emails Mr. Borger submitted, between 2:50 and 4:29 p.m., seven Advisory Board members (or their designees) replied to Mr. Allen (and copied other Board members, including Mr. Shaver) with the following comments, listed in chronological order:</p> <p class="opinion_quote">1. The Sheriff and I looked your memo and the proposed statement over. We like the idea of having this statement on record . . . . If you get consensus on it, we recommend [Mr. Shaver], on behalf of the MGSF Board, take action today and release it.</p> <p class="opinion_quote">2. Chief . . . and I reviewed your memo and endorse your recommendation and the immediate action by the board suggested by [commenter #1.]</p> <p class="opinion_quote">3. In my view the statement is a good idea and reflects a solidarity on the part of the board. I also feel that as chair of the MGSF Board, Chief Shaver is the person the statement should come from.</p> <p class="opinion_quote">4. You did a nice job [in the statement.]</p> <p class="opinion_quote">5. I agree with the others.</p> <p class="opinion_quote">6. I support the statement and agree [Mr. Shaver] as the chair of the MGSF would be the appropriate person to deliver the message.</p> <p class="opinion_quote">7. I support the statement and agree that Chief Shaver as the chair of the MGSF would be the appropriate person to deliver the message.</p> <p>At 5:00 p.m., Mr. Shaver issued a press release, which consisted of the verbatim statement Mr. Allen proposed in his email to Board members and two additional introductory sentences. Mr. Shaver then emailed the Advisory Board that he had taken that action.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Borger's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Is the Advisory Board for the Metro Gang Strike Force a public body that must comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D?</li> <li>Did the members of the Advisory Board for the Strike Force comply with the OML when they exchanged certain email messages relating to the activities of the Strike Force?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p><em><strong>Issue 1:</strong> Is the Advisory Board for the Metro Gang Strike Force a public body that must comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D?</em></p> <p>In his comments to the Commissioner, Mr. Shaver wrote: "(t)he OML applies to any 'board' of a 'public body.' Minn. Stat. section 13D.01, subd. 1(c)(3). As MGSF Bylaws acknowledge, the Advisory Board is subject to the OML."</p> <p><em><strong>Issue 2:</strong> Did the members of the Advisory Board for the Strike Force comply with the OML when they exchanged certain email messages relating to the activities of the Strike Force?</em></p> <p>Minnesota Statutes, section 13D.01, subdivision 1, states: "[a]ll meetings, including executive sessions, must be open to the public." The Legislature did not define "meeting" in the OML; however, the Minnesota Supreme Court described the "quorum rule:"</p> <p class="opinion_quote">'Meetings' subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body. <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983).</p> <p>In his comments to the Commissioner, Mr. Borger wrote:</p> <p class="opinion_quote">Because more than a quorum of the Advisory Board participated in the communications and a majority of the board expressly approved issuing the statement, it amounted to a 'virtual meeting' that violated the OML. The OML allows a non-physical 'meeting' of a public body only in very limited circumstances [See Minnesota Statutes, section 13D.021]. . . . .</p> <p class="opinion_quote">It is immaterial that Mr. Shaver might have issued a press release on his own authority, without any action by the Advisory Board. That is simply not what happened. . . . . Mr. Allen expressly requested action by the Advisory Board. All board members received that request. Discussion among board members addressed whether there was a 'consensus' on the requested action. Points of discussion included whether there should be a press release at all, what the release should say, and who should issue the press release. A majority of the board members expressly approved the request . . . . That surely constitutes 'transacting public business' under the standard of <em>St. Cloud Newspapers, Inc.</em>, 332 N.W.2d 1, 6 (Minn. 1983). . . . . What happened was that a quorum of the Advisory Board, 'as a group, discuss[ed] . . . [and] receive[d] information on official business.' [See <em>Moberg</em>, 336 N.W.2d at 518.]</p> <p>Mr. Shaver responded first on June 11, 2009; he modified his comments to the Commissioner in his August 12, 2009 response.</p> <p>In his June 11, 2009, comments, Mr. Shaver wrote:</p> <p class="opinion_quote">- I cannot speak on behalf of the Board on this matter as our Board has not met to discuss this issue. Our next meeting is on June 30th, almost two weeks beyond the June 17th deadline you provided.</p> <p class="opinion_quote">- As Chair, I cannot control the independent actions of the Board or individual Board member [sic] outside an official meeting.</p> <p class="opinion_quote">- In this incident I did not initiate the original e-mail or distribute it. I did distribute to the Board a copy of a news release, which is part of my day-to-day duties as chair.</p> <p>In his August 12, 2009, comments, Mr. Shaver wrote:</p> <p class="opinion_quote">The situation is analogous to a city council member alerting officials with administrative responsibilities to issues requiring immediate attention or offering other unsolicited input regarding day-to-day municipal business. Deputy Chief Allen's letter, and its distribution by e-mail, did not violate the OML. See <em>Moberg</em>, 336 N.W.2d at 518 . . . . He was simply disseminating information to all Board members alerting them about a matter of high importance....</p> <p class="opinion_quote">The e-mail from Deputy Chief Allen was a single Board member's opinion that a response was required. The communication in the other e-mails represented individuals offering their opinion that I should act on the matter immediately. References to the 'Board' or 'MGSF' in these e-mail communications stem from the fact that any routine actions performed by the Chair were done 'on the Board's behalf,' as specified by the MGSF Bylaws. . . .</p> <p>With respect to Mr. Shaver's assertion that he issued the news release as part of his day-to-day duties, the Commissioner respectfully disagrees. Mr. Shaver characterized the subject of the email Mr. Allen sent as "a matter of high importance" to the Advisory Board. Seven of the Advisory Board members, more than a quorum, expressed their opinions to all other Board Members about whether the Board should act, what action it should take and who should act on the Board's behalf.</p> <p>Mr. Shaver stated that Mr. Allen's email was permissible under <em>Moberg</em>, because it is permissible for members of a public body to receive information "through the mail." In <em>Moberg</em>, the Court stated that in a situation in which a quorum or more of a public body received written information as a group, but did not read and discuss it, there was no violation of the OML. In that situation, the Court wrote, ". . . such distribution was functionally equivalent to receiving information through the mail, which is permissible, and there was no danger of forming group consensus because no information was actually received until material was read and no discussion occurred." <em>Moberg</em> at 511. The Court made its ruling in 1983, long before email was a common means of communication.</p> <p>Here, a quorum of the Advisory Board, in addition to receiving information, commented on and provided direction to Mr. Shaver on a matter relating to the official business of the Board.</p> <p>The Commissioner is aware that Minnesota courts have not ruled definitively on this issue. However, given the facts here, the Commissioner believes that per <em>Moberg</em> and <em>St. Cloud Newspapers, Inc.</em>, the conduct of the Advisory Board constituted a meeting, which was required to be public, and as such is impermissible under the OML.</p> <p>If Mr. Allen had sent his suggestion only to Mr. Shaver, and if Mr. Shaver had taken action without consulting a quorum of the Board, then, in the Commissioner's view, that conduct would be permissible. It seems reasonable that one-way communication between the chair and members of a public body is permissible, such as when the chair or staff sends meeting materials via email to all board members, as long as no discussion or decision-making ensues.</p> <p>The Commissioner urges the Legislature to provide guidance in the OML on issues arising from the widespread use of email and other forms of communication. It would be helpful to clarify specifically what kinds of email communications are permissible.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, the Commissioner's opinion on the issues that Mr. Borger raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Advisory Board for the Metro Gang Strike Force is a public body that must comply with the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D.</li> <li>Members of the Advisory Board for the Strike Force did not comply with the OML when they exchanged certain email messages relating to the activities of the Strike Force.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: September 8, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2674462666402671472670202025-12-03T22:14:56Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266872" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-08-28T15:14:43ZDid Hennepin County comply with Minnesota Statutes, Chapter 13, when it released certain data to a third party?August 28, 2009; Hennepin County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 26, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated same, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding whether or not Hennepin County inappropriately disseminated data about X. IPAD requested additional information which X provided on July 10, 2009.</p> <p>IPAD, on behalf of the Commissioner, wrote to Kathy Washenberger, responsible authority for Hennepin County. The purposes of this letter, dated July 13, 2009, were to inform her of X's request and to ask her to provide information or support for the County's position. On July 31, 2009, IPAD received a response, dated July 30, 2009, from Ms. Washenberger.</p> <p>A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote that in early 2009, s/he was entering the Hennepin County Justice Center, where people are subject to weapons screening. X was denied admittance and the security staff then created an incident report. X wrote:</p> <p class="opinion_quote">The existence of this . . .[incident report] did not become known to me, the data subject, until . . . when, during the course of a meeting, [my employer] produced a copy for my review.</p> <p class="opinion_quote">It is unknown to me how many other individuals at [my employer's] office are served by the same fax machine where the confidential report was directed, and who, among them, saw the [confidential] report.</p> <p>X wrote that according to the current version of the document the County creates pursuant to Minnesota Statutes, section 13.05, subdivision 1 (the County refers to this document as an annual report), "all <strong>accident and incident reports</strong> produced by the <strong>Security Division</strong> of Hennepin County's <strong>Property Services Department</strong> are [confidential data]." [Emphasis provided.]</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Hennepin County comply with Minnesota Statutes, Chapter 13, when it released certain data to a third party?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.861, subdivision 1(a), defines "security service" as an "organization that provides security services to a government entity as part of that entity or under contract to it."</p> <p>Section 13.861, subdivision 1(b), states that security service data are "all data collected, created, or maintained by a security service for the purpose of providing security services."</p> <p>In relevant part, subdivision 2 of section 13.861 states, "Security service data that are similar to the data described as request for service data and response or incident [law enforcement] data in [Minnesota Statutes] section 13.82, subdivisions 3 and [6], are public."</p> <p>In her comments to the Commissioner, Ms. Washenberger wrote, "The [incident report] was prepared by a Hennepin County security officer following an incident involving X. . . . At the time the [incident report] was prepared, it was classified as security service data under Minn. Stat. section 13.861, subd. 1(b)." Ms. Washenberger stated that because data in the [incident report] are similar to the data described as response or incident data in section 13.82, subdivision 6, the [incident report] initially was public (and was public when it was disclosed to X's employer).</p> <p>The Commissioner agrees with Ms. Washenberger that when the incident report was disseminated to X's employer, the County appropriately determined that the data in the incident report were classified as public pursuant to section 13.861. Therefore, the County was in compliance with Chapter 13 when it disseminated the report.</p> <p>(Although Ms. Washenberger did not state that the County's security officers are part of a "security service" as that term is defined in section 13.861, the Commissioner assumes this to be the case and bases her analysis on that assumption.)</p> <p>The Commissioner has the following additional comments. Minnesota Statutes, section 13.05, subdivision 1, requires each government entity to create, and annually update, a document that describes the types of private or confidential data the entity maintains. While this document is a meant to be a resource tool for the public (and the entity), it is not legally binding.</p> <p>In her comments, Ms. Washenberger wrote:</p> <p class="opinion_quote">X's assertion that the [incident report] in question must be classified as confidential based on entries in the [data practices annual report] is erroneous . . . .Hennepin County has attempted to identify in the [annual report] data, including security files, which may be classified as private or confidential on individuals. Hennepin County's inclusion of security files in the [annual report] did not have the effect of making all incident reports confidential. The classification of any particular incident report as public or as private or confidential must be determined on a case by case basis. In this matter, none of the statutes cited in the [annual report] as the basis for classifying incident reports as confidential were applicable at the time the [incident report] was prepared or at the time it was shared with [X's employer]. There are some incident reports that are confidential prior to a claim being filed; however, the [incident report] at issue in this matter is not one of them.</p> <p>As noted above, a government entity's annual report document is not legally binding but should be updated on a regular basis so that it is current and complete. For example, because some of the security data the County maintains are public and some are not (see section 13.861, subdivision 2), it would be helpful and appropriate for the County to include that additional information in its annual report. Although a government entity is not required to list public data in its annual report, doing so can help members of the public and entity staff better understand how certain data are classified.</p> <p>Finally, in her letter to the Commissioner, Ms. Washenberger noted that X filed a Notice of Claim with the County in July 2009. Ms. Washenberger further noted that because the Hennepin County Attorney has determined that a civil legal action involving X is pending, the County now considers the incident report to be confidential pursuant to Minnesota Statutes, section 13.39. The Commissioner does not agree. Because the data in the incident report are similar to law enforcement response or incident data (see section 13.82, subdivision 6), the data always are public and cannot be withheld pursuant to section 13.39 or any other statutory provision.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that X raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Hennepin County complied with Minnesota Statutes, Chapter 13, when it released certain data to a third party.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: August 28, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2668722668712025-03-21T16:29:01Z266258266271266259266324266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267795" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-08-10T15:14:43ZDid the City of White Bear Lake comply with Minnesota Statutes, Chapter 13, when it charged a person $26.69 for copying 100 pages of data when the person wanted only 25 pages of data?August 10, 2009; City of White Bear Lake36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 23, 2009, the Information Policy Analysis Division (IPAD) received a letter dated June, 22, 2009, from Elizabeth Nixon. In her letter, Ms. Nixon asked the Commissioner to issue an advisory opinion regarding copy charges assessed her by the City of White Bear Lake.</p> <p>IPAD, on behalf of the Commissioner, wrote to Mark Sather, White Bear Lake City Manager, in response to Ms. Nixon's request. The purposes of this letter, dated July 2, 2009, were to inform him of Ms. Nixon's request and to ask him to provide information or support for the City's position. On July 20, 2009, IPAD received a response, dated July 17, 2009, from Cory Vadnais, White Bear Lake City Clerk/Responsible Authority.</p> <p>A summary of the facts as Ms. Nixon provided them is as follows. In an email dated September 25, 2008, Ms. Nixon discussed a previous data request her colleague had made.</p> <p>In an email dated September 29, 2008, Ms. Vadnais acknowledged receiving the request and discussed what the City charges for copies.</p> <p>In a September 30, 2008, email, Ms. Nixon wrote:</p> <p class="opinion_quote">In my reading of [Minnesota Statutes, Chapter 13], I have been working under the assumption that you would inform me when the information is available for me to review and then I would request photocopying of the relevant data.</p> <p class="opinion_quote">Please let me know that the data are available for me to review for relevance. What time might I or a colleague be able to stop by for this purpose?</p> <p>In an October 2, 2008, email, Ms. Vadnais wrote, "The documents have been ready for your review for a couple of days now. I will instruct the receptionist to allow you to review them and then charge you for the copies you wish to have."</p> <p>In an email dated October 24, 2008, Ms. Nixon wrote, "I finally had time to get in to city hall and review the [data] that I requested from you. Sorry that you mistakenly copied so many pages first, because the only relevant information was the written records, not all of those photographs."</p> <p>In a subsequent email on October 24, 2008, Ms. Vadnais wrote, "I assume, then, that since only some of the information was pertinent and what you were looking for, that you were only charged for only the information you needed, paid the $.25 per page standard fee we charge for those copies, and left the other information at the Information Desk."</p> <p>In her opinion request, Ms. Nixon wrote:</p> <p class="opinion_quote">...I made a request to review documents. In summary, Ms. Vadnais replied to inform me that the documents were ready to review The information available was 100 photocopied pages from various documents. The full documents were not made available. Of the 100 pages, I found approximately 25 pages to be of relevance, and I took these with me. The first floor desk attendant retained the remaining pages.</p> <p class="opinion_quote">The next month I received an invoice from the City to pay page fees, sales tax, and transit tax for "100 copies as requested". As I continued to dispute the invoice with Ms. Vadnais, I received additional invoices for several more months.</p> <p>To her opinion request, Ms. Vadnais attached a copy of an invoice dated October 27, 2008. The total is $26.69. Breakdown of that fee is: $25 (100 pages at $.25 per page) + $1.63 (sales tax) + $.06 (transit tax).</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Nixon's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of White Bear Lake comply with Minnesota Statutes, Chapter 13, when it charged a person $26.69 for copying 100 pages of data when the person wanted only 25 pages of data?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Minnesota Statutes, section 13.03, subdivision 3, provides for situations in which a person who is not the data subject seeks access to public information. If the person wants to inspect the data, the entity cannot charge any fee (section 13.03, subdivision 3(a)).</p> <p>If the person wants copies of the data, the government entity can charge a fee although charging is not required. Section 13.03, subdivision 3(c), provides that an entity may charge no more than $.25 per page if the person requests 100 or fewer black and white paper copies.</p> <p>In her comments to the Commissioner, Ms. Vadnais wrote:</p> <p class="opinion_quote">Ms. Nixon requested a great deal of information The Engineering staff subsequently spent a great deal of staff time electronically retrieving the information requested Much of this information was also only stored electronically, which required printing of the information which is equal to making a copy. In her request to the Engineering Department, Ms. Nixon did not state that she wanted to review the information first and then determine which information was pertinent to her. She plainly asked for copies of the information to be sent to her.</p> <p class="opinion_quote">Once copies of the requested information were gathered, I contacted Ms. Nixon to inform her that she could stop by to pick up the material at the Information Desk. she took the information to a side counter, selected the information she wanted, and left without paying fore [sic] anything. The information totaled 100 pages @ $.25 per page, plus sales tax.</p> <p>To her comments, Ms. Vadnais attached copies of several email messages. One of these emails, dated September 10, 2008, is from Ms. Nixon to someone who appears to be engineering department staff. In this email, Ms. Nixon wrote:</p> <p class="opinion_quote">We have been very patient with you since [a person] first requested last spring the public records on stormwater [sic] system annual inspections It has been months since the first data request and we have seen nothing from you. Perhaps you have it all sitting and just forgot to send.</p> <p class="opinion_quote">When you send those data, please also send a chronology of each street reconstruction project since 1980.</p> <p>Although Ms. Vadnais argues that Ms. Nixon "plainly" asked for copies, the Commissioner does not have a copy of the original request and writes this opinion based on the record that was submitted. Ms. Nixon's September 30, 2008, email to Ms. Vadnais states clearly that her intention is to inspect the data before requesting any copies. Ms. Vadnais's October 2, 2008, response - "I will instruct the receptionist to allow you to review [the documents] and then charge you for the copies you wish to have" - suggests that Ms. Vadnais understood that Ms. Nixon first wanted to inspect the data and then decide about copies.</p> <p>Thus, based on the information provided, and that inspection of government data is free, the City should charge Ms. Nixon only for the 25 pages she took with her. Because the number of pages is 100 or fewer, the City may charge no more than $.25 per page. The City may not charge a sales or transit tax. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/266635" title="95-053" target="_blank">Advisory Opinion 95-053</a> for more discussion about sales tax.)</p> <p>The following note is in order. In her comments to the Commissioner, Ms. Vadnais wrote that much of the information was stored only electronically "which required printing of the information which is equal to making a copy." If a person asks to inspect data that happen to be maintained electronically and the government entity, for security reasons, cannot allow the requestor to inspect the data on a computer, the entity must print the data. Because inspection of data is free, the entity cannot charge the cost of printing the data. (Section 13.03, subdivision subdivision 3(b).) Of course, if the requestor then asks for copies of the inspected data, the entity can then charge as allowed by Chapter 13.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Nixon raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of White Bear Lake did not comply with Minnesota Statutes, Chapter 13, when it charged a person $26.69 for copying 100 pages of data when the person wanted only 25 pages of data. The City can charge no more than $.25 per page, which for 25 pages would be $6.25.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: August 10, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2677952669362662542668032667262669372022-01-19T19:18:01Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268011" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-08-05T15:14:43ZDid Independent School District 861, Winona, comply with Minnesota Statutes, Chapter 13, in response to a June 19, 2009, for access to emails between District School Board members and the District Superintendent from June 5 - June 18, 2009?August 5, 2009; School District 861 (Winona)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 29, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated June 26, 2009, from Darrell Ehrlick, on behalf of the <em>Winona Daily News</em>. In his letter, Mr. Ehrlick asked the Commissioner to issue an advisory opinion regarding the newspaper's right to have access to certain data Independent School District 861, Winona, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Paul Durand, District Superintendent, in response to Mr. Ehrlick's request. The purposes of this letter, dated July 2, 2009, were to inform him of Mr. Ehrlick's request and to ask him to provide information or support for the District's position. Mr. Durand, responded, in an email dated July 27, 2009.</p> <p>A summary of the facts follows. According to Mr. Ehrlick, a <em>News</em> reporter asked to inspect email correspondence between Mr. Durand and District School Board members from June 5- June 18, 2009. The District's response, dated June 22, 2009, which Mr. Ehrlick provided, states:</p> <p class="opinion_quote">We reviewed your FOIA [sic] request of June 18, 2009. . . . . As Superintendent Durand shared with you, all communications will have to be reviewed for protected data and we may need to redact material before releasing it. Therefore, the Superintendent anticipates that this information will not be available prior to August 3.</p> <p>In his comments to the Commissioner, Mr. Durand wrote that the News reporter had submitted a written request for access to the data in question after a School Board meeting on June 18, 2009. Mr. Durand asked him if there was "anything specific" he sought, and "offered to return to his office to get specific documents" for the reporter. The reporter declined, stating that his request was not for anything specific.</p> <p>Mr. Durand stated that the District offices were closed on Fridays through the summer, and that he was out of the office from June 19, 2009 until July 3. He wrote:</p> <p class="opinion_quote">The information requested needed to be checked for private data and would then be redacted if necessary. [The District Administrative Assistant] was also on vacation from June 24 until July 1, and the District offices closed on the afternoon of July 1, and did not reopen until July 7 . . . . Further, it is normally the duty of the District's Human Resources Director . . . to review and redact private information prior to data practices requests being finalized and sent. However, [the H.R. Director] was also away from the District on vacation during this time. While the vacations of three of the main individuals who handle data practices requests in the District might not grant the District more time to respond to a data request, as outlined in Advisory Opinion 04-076, it does explain the background associated with the District's response to the data practices request.</p> <p class="opinion_quote">. . . . The procedure followed by District staff was similar to the procedure followed for another request that had been made by [another newspaper] earlier this spring seeking access to all e-mails between the Superintendent and school board members. In that situation, there were over 500 pages of documents that needed to be reviewed, protected data redacted, and a few questions referred to legal counsel to make sure there would be no illegal release of private data. This process took upwards of a month to complete. Based on this experience and the fact the staff did not have any idea how many e-mails were involved, the date of August 3 was selected and put in the response to [the <em>News</em>] while the Superintendent was absent from the District.</p> <p class="opinion_quote">After reviewing and analyzing the requested information, the data . . . were made available . . . on July 14, 2009. This date was three and a half weeks after the request was formally made, a delay of only 11 actual District business days based upon the fact that the District offices were closed on Fridays and over the July 4th holiday.</p> <p class="opinion_quote">The facts show that the District fully complied with the Data Practices Act in this case. The reporter was offered the chance to review specific documents immediately, the Superintendent informed the reporter of the possibility for delay based on the need for a thorough review of an unknown amount of email requested, [staff] later informed the reporter of the reasons for the delay, and the District actually produced the documents within 11 business days.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Ehrlick's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Independent School District 861, Winona, comply with Minnesota Statutes, Chapter 13, in response to a June 19, 2009, for access to emails between District School Board members and the District Superintendent from June 5 - June 18, 2009?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. When a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>In his comments, Mr. Ehrlick wrote that the District telling him it anticipated that it would take six weeks to provide access to the data is neither a prompt nor reasonable response. In general, the Commissioner agrees. However, the District actually took 11 business days. Although the Legislature did not define "reasonable time," the Commissioner has stated in many previous opinions that it is relative to the volume and substance of the data requested. Mr. Durand did not state how many emails were involved, but given that Mr. Ehrlick asked for emails sent during a two-week period, 11 business days seems to be a reasonable response time.</p> <p>Mr. Durand was correct in noting that Chapter 13 does not contain a provision that grants a government entity more time to respond to a data request because the entity is short staffed. In <a href="https://mn.gov/admin/data-practices/opinions/library/opinions-library.jsp?id=36-268014" target="_blank">Advisory Opinion 03-030</a>, the Commissioner stated:</p> <p class="opinion_quote">Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Ehrlick raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Independent School District 861, Winona, complied with Minnesota Statutes, Chapter 13, in response to a June 19, 2009, for access to emails between District School Board members and the District Superintendent from June 5 - June 18, 2009.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: August 5, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2680112025-10-29T17:45:58Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267995" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-07-16T15:14:43ZDid the City of Big Lake comply with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the report prepared by Midwest Government Advisors?July 16, 2009; City of Big Lake36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 4, 2009, the Information Policy Analysis Division (IPAD) received a letter dated June 3, 2009, from Isaac Kaufman, General Counsel for Law Enforcement Labor Services, Inc. (LELS). In his letter, Mr. Kaufman asked the Commissioner to issue an advisory opinion regarding the union's right to gain access to certain data from the City of Big Lake. IPAD requested additional information, which Mr. Kaufman provided in a letter dated June 16, 2009.</p> <p>IPAD, on behalf of the Commissioner, wrote to Scott Johnson, City Administrator, in response to Mr. Kaufman's request. The purposes of this letter, dated June 22, 2009, were to inform him of Mr. Kaufman's request and to ask him to provide information or support for the City's position. On July 10, 2009, IPAD received a response, dated same, from Soren Mattick, an attorney representing the City.</p> <p>A summary of the facts as Mr. Kaufman provided them is as follows. In a letter dated May 28, 2009, Mr. Kaufman requested certain data from the City:</p> <p class="opinion_quote">I am writing to request a copy of the report completed by Midwest Government Advisors, following that company's investigation in or about 2006 into the Big Lake Police Department's compliance with [certain laws].</p> <p>In a letter dated June 1, 2009, Mr. Johnson responded:</p> <p class="opinion_quote">hellip;The City Council reviewed [the report prepared by Mr. Shellum and Midwest Government Advisors] in a closed session at the regularly scheduled meeting on April 11, 2007. Upon reviewing the report, the City Council re-opened the meeting and voted unanimously to close the investigation regarding Chief Rifenberick and concluded that no disciplinary action was necessary. Based on the Council's vote that no disciplinary action was necessary and the legal opinion of the [City's attorney], the report is private data pursuant to [Minnesota Statutes, section 13.43].</p> <p>In his opinion request, Mr. Kaufman described some of the allegations and wrote, "On information and belief, the Midwest Government Advisors report includes the collection and analysis of data pertaining to these allegations, which are not private personnel data as to Chief Rifenberick."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Kaufman's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Big Lake comply with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the report prepared by Midwest Government Advisors?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Before proceeding, the Commissioner notes she writes this opinion based on the assumption that when Mr. Kaufman requested the report, he was acting as a member of the public as opposed to a representative of the union. This distinction is important because pursuant to Minnesota Statutes, section 13.43, subdivision 6, labor unions are entitled to certain not public personnel data. By requesting data as a member of the public, Mr. Kaufman is entitled to all public data but not any private data about union employees.</p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Section 13.43 classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>In a situation where someone has complained about an employee, the fact that a complaint exists and the status of the complaint are public. (Section 13.43, subdivision 2(a)(4).) If the government entity does not take disciplinary action against the employee, no additional data become public.</p> <p>In his comments to the Commissioner, Mr. Mattick wrote:</p> <p class="opinion_quote">LELS argues that non-personnel data regarding the Police Department as a whole can be parsed out from the report. However, the City of Big Lake commissioned the report in response to specific allegations about Chief Rifenberick.The report responds directly to these allegations about the Police Chief. As such, the report consists entirely of information from the investigation into the Police Chief's conduct.</p> <p class="opinion_quote">Since the Big Lake City Council voted that no disciplinary action was necessary, the report constitutes private data pursuant to [Minnesota Statutes, section 13.43].</p> <p>The City and Mr. Kaufman disagree about the subject matter of the report. Mr. Kaufman's position is that the report contains data that are not about the Police Chief and are public. The City's position is that all the data in the report are private data about the Police Chief. Because the Commissioner has not seen a copy of the report, she is unable to comment specifically upon its contents. If the Police Chief is the subject of all the data in the report and all the data relate to the complaints made against him or are otherwise private data about him, then the City cannot release the data to the public (Mr. Kaufman). However, if the report contains public data about the Police Chief or other public data, the City should release those data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Kaufman raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Commissioner is unable to determine whether the City of Big Lake complied with Minnesota Statutes, Chapter 13, in denying a request for a copy of the report prepared by Midwest Government Advisors.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: July 16, 2009</p> <hr /> </td> </tr> </tbody> </table> </div>2679952022-01-19T19:18:00Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267418" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-07-07T15:14:43ZAre “settlement agreements” between a municipality’s workers’ compensation insurer and employee public documents pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(6)? If such agreements are public, what, if any, information is the employer required to redact from the documents before making them available to the public?July 7, 2009; City of Oakdale36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On May 26, 2009, the Information Policy Analysis Division received a letter dated May 22, 2009, from Pamela VanderWiel, an attorney representing the City of Oakdale. In her letter, Ms. VanderWiel asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains.</p> <p>A summary of the facts as Ms. VanderWiel provided them is as follows. In her opinion request, she wrote that someone had asked for personnel data on five former city employees. Of relevance here is the part of the data request for the terms of any agreement settling any dispute arising out of any employment relationship, including a buyout agreement."</p> <p>Ms. VanderWiel wrote:</p> <p class="opinion_quote">One or more of the former employees listed has received payment from the city's worker's [sic] compensation insurer pursuant to a negotiated agreement. A copy of such an agreement is enclosed for your review. This agreement contains what would generally be considered [not public] data about the former employee, including the fact of a work-related injury, the nature of the injury, certain medical information, and the amount of the benefits received by the former employee.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. VanderWiel's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Are "settlement agreements" between a municipality's workers' compensation insurer and employee public documents pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(6)?</li> <li>If such agreements are public, what, if any, information is the employer required to redact from the documents before making them available to the public?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <h2>Issue 1</h2> <p><em>Are "settlement agreements" between a municipality's workers' compensation insurer and employee public documents pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(6)?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>Of relevance to this opinion, certain data about settlement agreements specifically are classified as public by section 13.43, subdivision 2(a)(6):</p> <p class="opinion_quote">the terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement as defined in section 123B.143, subdivision 2, paragraph (a); except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money.</p> <p>In her opinion request, Ms. VanderWiel wrote:</p> <p class="opinion_quote">The city questions, however whether a claim for worker's [sic] compensation benefits by an employee is a "dispute arising out of an employment relationship," as intended by the legislature when it enacted [section 13.43, subdivision 2(a)(6)]. The dispute involving worker's [sic]compensation, if any, arises out of the former employee's injury and his or her entitlement to benefits to compensate for that injury, not from his or her relationship with the employer.</p> <p class="opinion_quote">Further, the city notes that a settlement of a worker's [sic] compensation claim generally contains medical data, which is information more personal to an employee that [sic] that generally contained in, for example, a severance agreement. The legislature has recognized the privacy interest the employee has in the data by providing that medical data about an employee obtained by an employer or its workers' compensation insurer is to be treated as private data, under Minn. Stat. section 176.138.</p> <p>Ms. VanderWiel noted that in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267364" title="97-017" target="_blank">Advisory Opinion 97-017</a> the Commissioner concluded that medical data contained in a settlement agreement are public. She wrote:</p> <p class="opinion_quote">The facts of that opinion appear to be distinguishable, however. That case appeared to involve a standard separation agreement. In that situation, presumably the employee has a choice to exclude such data, and by including the data in the settlement, waives his or her right to complain about it being public. The settlement of a worker's [sic] compensation claim, however, necessarily involves the medical condition of the employee, and the employee has little choice but to include the information in the agreement.</p> <p>It is the Commissioner's understanding that the types of settlement agreements made public by section 13.43, subdivision 2(a)(6), are related to issues over which an employee would resign, be terminated, or face discipline. These are issues clearly related to the employment relationship.</p> <p>When someone has complained or made a charge about an employee, and the employee resigns prior to there being a final disposition, very little data about the circumstances are public. By making settlement agreements public, the Minnesota Legislature made a policy decision that if the dispute is settled with an agreement, the terms of the agreement must be public.</p> <p>While the settling of a workers' compensation claim resolves a dispute, it is a dispute over who will pay the employee's medical expenses and how much each party will pay. This does not seem to be the type of settlement agreement the Legislature intended to be public under section 13.43, subdivision 2(a)(6).</p> <h2>Issue 2</h2> <p><em>If such agreements are public, what, if any, information is the employer required to redact from the documents before making them available to the public?</em></p> <p>See Issue 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. VanderWiel raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>"Settlement agreements" between a municipality's workers' compensation insurer and employee are not public documents pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(6).</li> <li>See issue 1.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: July 7, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2674182665572670892022-01-19T19:18:00Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267506" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-06-30T15:14:43ZIs the Minnesota Municipal Utilities Association subject to Minnesota Statutes, Chapter 13? If the answer to Issue 1 is yes, did MMUA comply with Minnesota Statutes, Chapter 13, in its response to a March 16, 2009, request for access to certain data?June 30, 2009; Minnesota Municipal Utilities Association36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On May 21, 2009, Information Policy Analysis Division (IPAD) received a letter, dated same, from Anna Kurth, on behalf of the <em>Hibbing Tribune</em>. In her letter, Ms. Kurth asked the Commissioner to issue an advisory opinion regarding <em>Hibbing Tribune's</em> right to get access to certain data from the Minnesota Municipal Utilities Association (MMUA.)</p> <p>IPAD, on behalf of the Commissioner, wrote to Jack Kegel, Executive Director of MMUA, in response to Ms. Kurth's request. The purposes of this letter, dated May 26, 2009, were to inform him of Ms. Kurth's request and to ask him to provide information or support for MMUA's position. Kaela Brennan, attorney for MMUA, responded, in a letter dated June 11, 2009.</p> <p>A summary of the facts follows. In a March 16, 2009, email, <em>Hibbing Tribune</em> wrote to Mr. Kegel, asking for access to all data that relate to "meetings conducted or sponsored by MMUA at which representatives of Excelsior Energy [a private business] have been allowed or invited to make presentations."</p> <p>In a March 19, 2009, email, Mr. Kegel replied, stating that MMUA "is a private, nonprofit trade association and is not subject to [Chapter 13.]"</p> <p>In her comments to the Commissioner, Ms. Brennan provided some background:</p> <p class="opinion_quote">MMUA was created in 1931 as a private, non-profit corporation under Chapter 317A of Minnesota Statutes and qualified as a tax-exempt organization under Section 501(c)(6) of the Internal Revenue Code. MMUA performs trade-association services to Minnesota Cities engaged in utility enterprises, including gas, electricity, and water. MMUA's Restated Articles of Incorporation define its purpose 'to protect and assist municipally-owned utilities in the state of Minnesota,' including disseminating information of interest to municipal utilities, meeting, conferring, and interchanging ideas for greater efficiency and economy of municipal utilities.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Kurth's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Is the Minnesota Municipal Utilities Association subject to Minnesota Statutes, Chapter 13?</li> <li>If the answer to Issue 1 is yes, did MMUA comply with Minnesota Statutes, Chapter 13, in its response to a March 16, 2009, request for access to certain data?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <h2>Issue 1:</h2> <p><em>Is the Minnesota Municipal Utilities Association subject to Minnesota Statutes, Chapter 13?</em></p> <p>In her comments to the Commissioner, Ms. Kurth wrote, in support of <em>Hibbing Tribune's</em> position that MMUA is obligated to provide access to the data in question:</p> <p class="opinion_quote">It appears to us that, rather than being a separate, private entity, [MMUA] is purely a creature of the state's municipal electric, natural gas and water utilities. Municipal utilities are of course governmental agencies, governed by a city council or an appointed utility commission. Furthermore, the support services the association provides are so thoroughly intermingled with its member utilities' operations that it is often hard to distinguish the two.</p> <p class="opinion_quote">Taken together, the MMUA's existence as an entity created by governmental agencies, and its involvement in its member utilities' training, planning, policy discussions, project financing and day-to-day operations, adds up to what to us seems a convincing case that, in key respects, the association functions as a government entity, and should therefore be subject to the Government Data Practices Act.</p> <p class="opinion_quote">Lastly, it is our view that the MMUA may come within the provisions of Minnesota Statute 13.05, Subd. 11, because it would seem virtually certain that - even if it is a private entity - it maintains a contractual relationship with its government agency members.</p> <p>In her response to the Commissioner, Ms. Brennan stated that MMUA is a tax-exempt organization under Section 501(c)(6) of the Internal Revenue Service Code, and as such, is not a government entity for purposes of Minnesota Statutes, section 13.02, subdivision 7a, and therefore is not subject to Chapter 13.</p> <p>The Commissioner acknowledges <em>Hibbing Tribune's</em> position that, given that MMUA is an association whose member municipal utilities are all subject to Chapter 13, its data ought to be accessible to the public. Nonetheless, MMUA is a private entity, whose data, generally, are exempt from public exposure.</p> <p>However, government entities, which are subject to Chapter 13, frequently contract with private organizations, such as MMUA, to perform functions on their behalf. MMUA provides services under some sort of arrangement to its members, which are, according to Ms. Brennan, municipal utilities operated by Minnesota cities. Those member municipal utilities are subject to Chapter 13, and they may not enter into associations with private organizations that enable them to shield their activities from the public.</p> <p>The Commissioner addressed an issue that is similar to <em>Hibbing Tribune's</em> characterization of the operation of MMUA, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267521" title="01-044" target="_blank">Advisory Opinion 01-044</a>, in describing an arrangement between a government entity and a private nonprofit:</p> <p class="opinion_quote">The gist of [the] argument is that when the Authority entered into contract with the Nonprofit, it . . . delegated its operating authority to the Nonprofit. . . . In essence, this shields the operation of the Aquarium from public scrutiny. This is the very type of situation the Legislature rectified by amending Chapter 13 to include the contract language now codified at section 13.05, subdivision 11.</p> <p>Minnesota Statutes, section 13.05, subdivision 11, which was effective August 1, 1999, provides:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>Ms. Brennan stated that MMUA does not perform any government function and therefore Minnesota Statutes, section 13.05, subdivision 11 is not applicable. However, the cases she cited in support of MMUA's position do not construe the phrase "government function" in section 13.05, subdivision 11, and, in the Commissioner's opinion, do not apply here. The Commissioner believes that section 13.05, subdivision 11, does apply to any agreements/arrangements/contracts MMUA and its member municipal utilities entered into after August 1, 1999, which she assumes are renewed/revised on a regular basis.</p> <h2>Issue 2:</h2> <p><em>If the answer to Issue 1 is yes, did MMUA comply with Minnesota Statutes, Chapter 13, in its response to a March 16, 2009, request for access to certain data?</em></p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267459" title="05-034" target="_blank">Advisory Opinion 05-034</a>, the Commissioner opined:</p> <p class="opinion_quote">In <em>WDSI, Inc. v. The County of Steele</em>, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required in section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:</p> <p class="opinionquoteinquote">To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it. [See WDSI, p.622. Also see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>.]</p> <p>MMUA did not provide copies of its agreements/arrangements/contracts with its member municipal utilities, but it appears that MMUA is providing them services of the kind the Legislature contemplated when it enacted section 13.05, subdivision 11. If so, then the data that relate to performing agreed-upon services that MMUA creates, collects, etcetera after August 1, 1999, are government data subject to the requirements of Chapter 13. Per <em>WDSI</em>, even if the required language was not in the contracts, it must be inferred.</p> <p>Ms. Brennan wrote "MMUA has not entered [sic] a contract with government entities concerning the subject of Hibbing Tribune's request." However, contracts and other agreements typically contain broader statements that refer to services in general, and she stated that MMUA's services include "meeting, conferring, and interchanging ideas." Thus, the data <em>Hibbing Tribune</em> requested, i.e., data that relate to "meetings conducted or sponsored by MMUA" are subject to disclosure.</p> <p>Clearly under section 13.05, subdivision 11(b), the member municipal utilities must provide <em>Hibbing Tribune</em> with the data in question if they maintain it. However, it is reasonable to assume that because MMUA arranged for Excelsior Energy to attend/present at MMUA-sponsored events, MMUA may maintain related data that none of its members maintains. Thus, if the data in question are not available from the member utilities, MMUA must provide the data. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267398" title="09-003" target="_blank">Advisory Opinion 09-003</a>.)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Kurth raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Minnesota Municipal Utilities Association is subject to Minnesota Statutes, Chapter 13, to the extent that its arrangements with its member cities obligate it to comply with Minnesota Statutes, section 13.05, subdivision 11.</li> <li>MMUA did not comply with Minnesota Statutes, Chapter 13, in its response to a March 16, 2009, request for access to certain data, if those data are maintained only by MMUA, and are not accessible from its government entity members.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: June 30, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2675062662802662812022-01-19T19:18:00Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267284" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-06-23T15:14:43ZDid School District 659, Northfield, comply with Minnesota Statutes, Chapter 13, if it took the actions described in a May 15, 2009, advisory opinion request?June 23, 2009; School District 659 (Northfield)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 19, 2009, the Information Policy Analysis Division (IPAD) received a letter, dated May 15, 2009, from "X." In his/her email, X asked the Commissioner to issue an advisory opinion regarding whether, pursuant to Minnesota Statutes, Chapter 13, Independent School District 659, Northfield, violated X's rights as a data subject.</p> <p>IPAD, on behalf of the Commissioner, wrote to L. Chris Richardson, District Superintendent, in response to X's request. The purposes of this letter, dated May 26, 2009, were to inform him of X's request and to ask him to provide information or support for the District's position. Dr. Richardson responded, in an email dated June 5, 2009.</p> <p>A summary of the facts as X presented them follows. In his/her opinion request, X referenced (and enclosed) a letter X sent to the federal Family Policy Compliance Office, and emails between X and the District, in which s/he alleged that the District had violated state and federal laws governing data about X's child.</p> <p>X wrote: "[A District teacher] engaged in the practice of writing on [his/her] classroom blackboard the names and actual test scores of each student . . . who had received an A or a B on classroom tests . . . ."</p> <p>In his comments to the Commissioner, Dr. Richardson wrote:</p> <p class="opinion_quote">Under the MGDPA and FERPA, this teacher's action may be a violation of the students' rights to privacy. While it could be argued that the posting of the top test scores was a classroom award, or that the individual test scores are not educational data, the District has discontinued the practice. . . .</p> <p class="opinion_quote">The student's [X's child's] score had only been posted when it was among the high scores for that unit or chapter. The teacher stated that this was a common AP [Advanced Placement Program] motivational strategy which was suggested to [her/him] by an AP conference presenter. However, the District took swift action to explain the situation and to inform the teacher that [s/he] had to discontinue posting the top students [sic] names and scores.</p> <p class="opinion_quote">There may be an argument that individual test scores such as those posted do not constitute 'educational records' under FERPA. The Supreme Court has ruled that individual assignment grades that are shared with the entire class after they have been peer graded are not education records because they are not yet 'maintained' as required under FERPA. Owasso Indep. Sch. Dist. v. Falvo, 122 S.Ct. 934, 939 (2002). That Court also stated that the individual results were not educational records because the Legislature [sic] could not have meant to give parents the ability to challenge the accuracy of the grade on an assignment or test, as is required by FERPA for all educational records. Id.</p> <p class="opinion_quote">However, the District understands that the practice of posting the names and grades of high scoring students is most likely a FERPA and MGDPA violation. Thus, the District has taken corrective action with the teacher who posted the grades in order to stop the postings. The District has also taken preemptive action against future violations through staff training in order to ensure that all staff members understand the responsibilities imposed by FERPA and the MGDPA.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did School District 659, Northfield, comply with Minnesota Statutes, Chapter 13, if it took the actions described in a May 15, 2009, advisory opinion request?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Minnesota Statutes, section 13.02, subdivision 8, defines an individual to include a parent or guardian, or someone who is acting as a parent or guardian.</p> <p>Data about students are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. Those data (termed "education records" under FERPA and "educational data" under section 13.32), subject to limited exceptions, are classified as private (see Minnesota Statutes, section 13.02, subdivision 12.)</p> <p>Dr. Richardson stated that per the United States Supreme Court holding in <em>Owasso</em>, the test score data may not be considered an education record for purposes of FERPA. The Commissioner does not have sufficient information to make that determination, and, according to Dr. Richardson, the District nevertheless believes that it violated state and federal law when it posted the test score without consent. Regardless, a student's test score is private educational data according to section 13.32, and may not be disseminated without consent.</p> <p>The District has acknowledged that the practice of posting individual student's test scores by name violates FERPA and section 13.32, and has taken measures to ensure it does not do so again.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that X raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>School District 659, Northfield, did not comply with Minnesota Statutes, Chapter 13, when it posted a test score that identified X's child.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Sheila M. Reger <br /> Commissioner</p> <p class="date">Dated: June 23, 2009</p> <hr /> </td> </tr> </tbody> </table> </div>2672842671082022-01-19T19:18:00Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267442" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-05-08T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share private or nonpublic grant response data with the Hennepin County Board and staff, and can the Board discuss these data in an open meeting? Pursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share data it creates or maintains as part of its grant evaluation process (prior to the evaluation being completed) with Hennepin County Board and staff, and can the Board discuss these data in an open meeting?May 8, 2009; Minnesota Department of Human Services36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On April 27, 2009, the Information Policy Analysis Division received an email from Marsha West, Legal Editor for the Appeals and Regulations Division at the Minnesota Department of Human Services (DHS). In her email, Ms. West asked the Commissioner to issue an advisory opinion regarding the classification of certain data DHS maintains.</p> <p>A summary of the facts Ms. West provided is as follows. In her opinion request, she wrote:</p> <p class="opinion_quote">The [Alcohol and Drug Abuse Division (ADAD) of DHS] issued a grant request for proposalhellip;in which they were seeking responders who would provide services to individuals who were in need of chemical dependency treatment. The ADAD would then enter into grant contracts with the responders they have selected. Before awarding these grant contract [sic] and in accordance with Minnesota Statutes, section 254A.07, ADAD must submit a listing of all responders to their grant RFP to whom ADAD is considering awarding a grant contract for county board approvalhellip;.</p> <p class="opinion_quote">Since the evaluation data is protected nonpublic data until completion of the evaluation process, I told ADAD to draft a consent form and obtain written consent from responders to whom they would like to award a grant contract so that DHS could share this information with the county board. Consent was authorized by these responders and the ADAD provided copies of preliminary award letters to Hennepin County staff and the board.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. West's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share private or nonpublic grant response data with the Hennepin County Board and staff, and can the Board discuss these data in an open meeting?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share data it creates or maintains as part of its grant evaluation process (prior to the evaluation being completed) with Hennepin County Board and staff, and can the Board discuss these data in an open meeting?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share private or nonpublic grant response data with the Hennepin County Board and staff, and can the Board discuss these data in an open meeting?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.599, classifies data related to grants that state agencies award. Subdivision 3 of section 13.599 classifies data that grantees submit in responses to requests for proposals. Of relevance here is clause (a):</p> <p class="opinion_quote">(a) Responses submitted by a grantee are private or nonpublic until the responses are opened. Once the responses are opened, the name and address of the grantee and the amount requested is public. All other data in a response is private or nonpublic data until completion of the evaluation process. After a granting agency has completed the evaluation process, all remaining data in the responses is public with the exception of trade secret data as defined and classified in section 13.37. A statement by a grantee that the response is copyrighted or otherwise protected does not prevent public access to the response.</p> <p>Ms. West has asked the Commissioner to comment on situations in which the grantees' bids have been opened but in which the evaluation process is not yet complete. Thus, pursuant to section 13.599, subdivision 3(a), the names and addresses of the grantees are public and so is the amount each grantee has requested. All other data in the responses are not public.</p> <p>Subdivision 4, clause (b) of section 13.599 states:</p> <p class="opinion_quote">(b) If a granting agency asks individuals outside the granting agency to assist with the evaluation of the responses, the granting agency may share not public data in the responses with those individuals. The individuals participating in the evaluation may not further disseminate the not public data they review.</p> <p>Ms. West states that under Minnesota Statutes, section 254A.07, DHS must "submit a listing of all responders to their grant RFP to whom [DHS] is considering awarding a grant contract for county board approval." Thus, DHS is asking (because they are required to do so) the Hennepin County Board and staff to assist with the evaluation of the responses. Under section 13.599, subdivision 4(b), DHS can share the private and nonpublic data in the responses but the Board and staff cannot further disseminate the information.</p> <p>As part of the first issue, Ms. West asked whether the County Board can discuss, in a public meeting, the private/nonpublic data in the responses. One way to accomplish this is for DHS to obtain informed consent from the subjects of the data, i.e., the grantees. (Minnesota Statutes, section 13.05, subdivision 4(d) and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267714" title="03-014" target="_blank">Advisory Opinion 03-014.</a>)</p> <p>In addition, the Open Meeting Law (Minnesota Statutes, Chapter 13D) provides the following: "[Not public data] may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body." (Section 13D.05, subdivision 1.) It seems, in this case, given there is a statute requiring that the Board approve DHS' grants, the matter is certainly within the scope of the Board's authority and some discussion of private/nonpublic data may be necessary for the board to make its decision.</p> <h2>Issue 2:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, can the Minnesota Department of Human Services share data it creates or maintains as part of its grant evaluation process (prior to the evaluation being completed) with Hennepin County Board and staff, and can the Board discuss these data in an open meeting?</em></p> <p>Subdivision 4(a) of section 13.599 classifies evaluation data created or maintained by a granting agency as part of the evaluation process:</p> <p class="opinion_quote">(a) Data created or maintained by a granting agency as part of the evaluation process referred to in this section are protected nonpublic data until completion of the evaluation process at which time the data are public with the exception of trade secret data as defined and classified in section 13.37.</p> <p>The classification of protected nonpublic is the most restrictive of the classifications in Chapter 13. It means that only those staff within the government entity who need the data to do their jobs can get access to the data. The data are not available to the public or even to the data subjects. Because data subjects cannot gain access to the data, they do not have the right to give consent for the data to be released to persons outside the entity. Thus, DHS cannot share its evaluation process data with the County Board. Because DHS cannot share these data with the County Board, the issue of whether the Board can discuss the data in an open meeting is moot.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Shefchik raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, section 13.599, subdivision 4(b), the Minnesota Department of Human Services can share private or nonpublic grant response data with the Hennepin County Board and staff. Pursuant to Minnesota Statutes, section 13D.05, subdivision 1, the Board may discuss the private or nonpublic data in an open meeting "if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body." The Board is in the best position to make this determination.</li> <li>Because Minnesota Statutes, section 13.599, subdivision 4(a), classifies grant evaluation data as protected nonpublic, the Minnesota Department of Human Services cannot share its evaluation process data with Hennepin County Board and staff. Because DHS cannot share these data with the County Board, the issue of whether the Board can discuss the data in an open meeting is moot.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 8, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2674422667442667172022-01-19T19:17:58Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266816" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-05-06T15:15:43ZPursuant to Minnesota Statutes, Chapter 13, must the Dakota County Community Development Agency (CDA), in response to a request, produce data that it does not maintain and is not required to collect? May 6, 2009; Dakota County Community Development Agency36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On April 24, 2009, the Information Policy Analysis Division (IPAD) received an email from Janet Shefchik, the data practices compliance official for the Dakota County Community Development Agency (CDA). In her email, Ms. Shefchik asked the Commissioner to issue an advisory opinion regarding the CDA's obligation to respond to a request for data. IPAD asked for additional information, which Ms. Shefchik provided on April 30, 2009.</p> <p>A summary of the facts as Ms. Shefchik provided them follows. A person asked the CDA for certain bi-weekly certified payroll information. Ms. Shefchik wrote:</p> <p class="opinion_quote">This request relates to a Senior Building that is under construction for the CDA. Superior Plumbing Heating is a subcontractor on the project. The CDA has voluntarily set its required pay rates for its senior building projects equal to area prevailing wage rates. The CDA's Sr. Buildings, however, are funded by the CDA (not state or federal funds) and are NOT subject to prevailing wage payment and reporting requirements. This means that we are not required to collect payroll data from the contractors on their employees. In fact, neither our policies nor contracts require us to collect this data. Our practice has been that when there are specific allegations of underpayment by a worker on a Sr. Building project, CDA staff will investigate. As there have been no allegations, we do not have the certified payroll data that is being requested, nor do we intend to request it on a bi-weekly basis as stated in the request. In summary, it is our understanding that if the data does not exist and we are not required to collect or maintain it as public data; then we are not required to produce it.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Shefchik's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, must the Dakota County Community Development Agency (CDA), in response to a request, produce data that it does not maintain and is not required to collect?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Upon request, government entities must provide access to public government data.</p> <p>Government data are defined at section 13.02, subdivision 7, as all data collected created, received, maintained, or disseminated by a government entity regardless of physical form, storage media, or conditions of use.</p> <p>As the Commissioner has stated in previous advisory opinions, Chapter 13 does not require government entities to create data, but rather to provide access to existing data. In some circumstances, a government entity might be required to obtain data it does not otherwise maintain, if it is required to maintain those data to comply with Minnesota Statutes, section 15.17, commonly known as the Official Records Act. (See, for example, Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267199" title="08-011" target="_blank">08-011</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267467" title="08-024" target="_blank">08-024</a>.)</p> <p>According to Ms. Shefchik, the CDA is not required to collect or maintain the requested data. Therefore, the CDA is not required to produce the payroll data in response to a request.</p> <p>(The Commissioner notes that if CDA did maintain the requested data, it would need to determine how the data are classified; some of the data may not be public.)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Shefchik raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, the Dakota County Community Development Agency is not obligated to produce data that it does not maintain and is not required to collect.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 6, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2668162664182022-05-06T18:03:57Z266258513982515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266880" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-05-06T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: financial information (including tax returns) submitted to Cook County by responders to a request for qualifications?May 6, 2009; Cook County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On April 16, 2009, the Information Policy Analysis Division received an email from Tim Scannell, the data practices compliance official for Cook County. In his email, Mr. Scannell asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>A summary of the facts Mr. Scannell provided is as follows. He wrote in his opinion request:</p> <p class="opinion_quote">Cook County is issuing a Request for Qualifications (not a bid or [request for proposal]) for installation of External Wildfire Sprinkler Systems to protect homes and businesses from wildfire under a pre-disaster mitigation grant from [the Federal Emergency Management Agency]. The county will evaluate the responses and provide a list of qualified installers for homeowners to choose from and to contract with.</p> <p class="opinion_quote">We want to ask for financial statements or tax returns from the potential installers as part of the [request for qualifications] to demonstrate their ability to complete the projects.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Scannell's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: financial information (including tax returns) submitted to Cook County by responders to a request for qualifications?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Information contained in the <em>Vendor's Agreement</em> document provides some additional details regarding the issue Mr. Scannell raised. The County has received grant monies from the Federal Emergency Management Agency (FEMA) to assist property owners in defraying the cost of the sprinkler systems. A provision on page 1 of the <em>Vendor's Agreement</em> states, in order to achieve the goals of the project, the County will qualify Vendors to install sprinkler systems to certain standards on behalf of Property Owners in these forested areas and will supplement the cost of these systems using the Grant monies."</p> <p>Provisions on pages 2 and 3 of the <em>Vendor's Agreement</em> discuss the relationship between the vendor and the property owner, and provide more information about reimbursements to vendors:</p> <p class="opinion_quote">i. Property Owners will work directly with a Vendor for the design and installation of a Sprinkler System on their property.</p> <p class="opinion_quote">iii. Property Owner will enter into a contract directly with Vendor for installation of the Sprinkler System. Upon completion of the installation, Property Owner will be responsible for payment to Vendor for all costs less the amount to be reimbursed by the County pursuant to the Grant.</p> <p class="opinion_quote">iv. The Vendor will be reimbursed up [sic] 75% of the cost [sic] each installed Sprinkler System, not to exceed $5,250 for each new system or $3,250 for each system upgrade. Property Owner is responsible for the balance of the contractors invoice.</p> <p>Based on additional information contained in the <em>Vendor's Agreement</em>, it appears that property owners wishing to receive grant monies have made application through the county and that their contact information is available to the vendors. Text at the beginning of the <em>Agreement</em> states, "Once vendors have been notified that they are qualified, the vendor may begin to contract with homeowners who are on the application list."</p> <p>As stated above, government data are public unless otherwise classified. In his opinion request, Mr. Scannell mentioned Minnesota Statutes, section 13.591, as a possible provision under which the County could withhold financial information submitted by the vendors. The Commissioner does not agree. Subdivisions 1 and 2 of section 13.591 protect certain data submitted to government entities by businesses requesting financial assistance or a benefit financed by public funds. In the current situation, it is the property owners who are receiving financial assistance/a benefit financed by public funds, not the vendors. The County, via the FEMA grant, is paying up to 75 percent of the cost of the new or upgraded sprinkler system. Although the vendors receive money from the County, the payment is reimbursement for the portion provided to the property owners via the FEMA grant.</p> <p>The Commissioner has not seen the data in question. Aside from the possibility that some of the data may be security information under Minnesota Statutes, section 13.37, the Commissioner is not aware of a provision in state law that would protect the data. In addition, the regional FEMA office has indicated there is no federal law affecting the classification of the data. Therefore, they are public under section 13.03, subdivision 1.</p> <p>Finally, Minnesota Statutes, section 13.35, states, "To the extent that a federal agency requires it as a condition for contracting with a government entity, all government data collected and maintained by the government entity because that agency contracts with the federal agency are classified as [not public]." The Commissioner has not seen the FEMA contract regarding the grant but given that neither the regional office nor the County indicated there is any provision in the contract protecting the data, the Commissioner assumes no such provision exists.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Scannell raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, financial information (including tax returns) submitted to Cook County by vendors responding to a request for qualifications are public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1. It is possible that some of the data may be security information under Minnesota Statutes, section 13.37.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 6, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2668802666802022-01-19T20:48:58Z266258513982266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267003" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-04-17T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: the names of owners of a company that are contained in a business plan the company submitted to the City of Preston as part of a request for financial assistance?April 17, 2009; City of Preston36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On March 5, 2009, the Information Policy Analysis Division (IPAD) received a letter dated same, from Dwight Luhmann, attorney for the City of Preston. In his letter, Mr. Luhmann asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD asked for additional information which Mr. Luhmann provided on March 9, 2009.</p> <p>A summary of the facts as provided by Mr. Luhmann is as follows. In a letter dated October 23, 2008, the City received a request for the following: "All documents containing the names, current addresses and/or partners of Root River LLC, Preston, Minnesota."</p> <p>In a letter dated December 16, 2008, the city administrator responded: "During a search of City records, I discovered one document, a business plan for Root River LLC, that lists the owners of the Root River LLC. I cannot, however, release this document as it is classified as private or non-public by MN Statute 13.591."</p> <p>In a letter dated December 29, 2008, the data requestor wrote again: "My request for a list of owners is different from a business plan and is not one of the enumerated exceptions to the public data disclosure act."</p> <p>In his opinion request Mr. Luhmann wrote regarding the October 23, 2008, request:</p> <p class="opinion_quote">The only document found as a result of that search was a business plan Root River, LLC had applied to the Preston Economic Development Authority for tax increment financing and did in fact receive that assistance. The response indicated that the business plan had been discovered, but was not being provided because a determination had been made that it was private or nonpublic data pursuant to M.S. 13.591 Subdivisions 1 and 2.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Luhmann's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: the names of owners of a company that are contained in a business plan the company submitted to the City of Preston as part of a request for financial assistance?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.591, subdivision 1, classifies certain data submitted to a government entity by a business that requests financial assistance or a benefit financed by public funds. This provision states that the following data are private or nonpublic: financial information about the business, including credit reports; financial statements; net worth calculations; <em>business plans</em>; income and expense projections; balance sheets; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>Subdivision 2 of section 13.591, states that when a government entity provides public financial assistance or a benefit to a business, the data types listed in subdivision 1 become public except the following data remain not public: <em>business plans</em>; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>Root River LLC requested and received a benefit/financial assistance from the City. Although Mr. Luhmann did not specifically so state, the Commissioner assumes Root River submitted its business plan as part of requesting the benefit/financial assistance. Pursuant to section 13.591, subdivision 2, the business plan (and the data contained therein) Root River submitted to the City is not public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Luhmann raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The business plan, and the data contained therein, that a particular business submitted to the City of Preston as part of a request for a benefit/financial assistance are not public data pursuant to Minnesota Statutes, section 13.591.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 17, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2670032666802022-01-19T19:17:58Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267050" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-04-02T15:14:43ZGiven the publicity relating to the Office of Civil Rights (OCR) complaints, can School District 47, Sauk Rapids-Rice, release a copy of the two OCR decisions after redacting all personally identifying information that appears in those documents?April 2, 2009; School District 47 (Sauk Rapids-Rice)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 9, 2009, the Information Policy Analysis Division (IPAD) received a letter dated February 6, 2009, from Michael Waldspurger and Kimberley Sobieck, attorneys representing School District 47, Sauk Rapids-Rice. In their letter, Mr. Waldspurger and Ms. Sobieck asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD requested additional clarification which Mr. Waldspurger provided on February 23, 2009.</p> <p>A summary of the facts as Mr. Waldspurger and Ms. Sobieck provided them is as follows. They wrote in their opinion request that the parents of District students filed complaints with the federal Office for Civil Rights (OCR):</p> <p class="opinion_quote"><em>While OCR's investigation was pending, the [parents] voluntarily detailed information to [a local newspaper] about the complaints. The newspaper subsequently published [an article] about the complaints. In addition, the [parents] discussed their complaints in [correspondence with the District's School Board and the newspaper]. The [parents'] letter identifies students and employees by name.</em></p> <p>Mr. Waldspurger and Ms. Sobieck discussed that the OCR issued two decisions. Regarding one, they wrote, "Although OCR's decision does not identify individuals by name, the decision contains a wealth of personal identifiers, such as job titles and codes that are easy to decipher....if an unredacted copy of the decision were released, many community members could readily identify students, [others], and District employees who are referenced in the decision."</p> <p>Regarding the second decision, Mr. Waldspurger and Ms. Sobieck stated, "[This decision] contains very little personally identifying identification."</p> <p>Mr. Waldspurger and Ms. Sobieck noted that the District has received a request for a copy of each decision. They wrote, "As of this date, however, the District has not released redacted copies of the decisions, because the District is concerned that even with heavy redaction the decisions would reveal private educational data on the [parents and their student children]."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on the opinion request from Mr. Waldspurger and Ms. Sobieck, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Given the publicity relating to the Office of Civil Rights (OCR) complaints, can School District 47, Sauk Rapids-Rice, release a copy of the two OCR decisions after redacting all personally identifying information that appears in those documents?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Data about students and their parents are governed by both Minnesota and federal law. Minnesota Statutes, section 13.32, classifies data relating to students and parents, and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, data about students and their parents are private, and may not be released without consent.</p> <p>In their opinion request, Mr. Waldspurger and Ms. Sobieck wrote:</p> <p class="opinion_quote">The District questions whether either [of the decisions] can be redacted to a degree that would prevent the release of private educational data on the [parents and their student children]. Under Minnesota Statutes section 13.32, the following data appear to be classified as private educational data when they are in the possession of a public school district: data identifying a parent or student who files a complaint; data revealing the nature of a parent or student's complaint; and data revealing the resolution of a parent or student's complaint. If the OCR decisions are released in any form, members of the community will know the identity of the complainants because of the earlier publicity. Moreover, unless the decisions are redacted to a degree that essentially renders them meaningless, members of the community will be able to ascertain the nature of the complaints and the manner in which OCR resolved them.</p> <p>The Commissioner agrees that the fact the parents made complaints and the outcomes of the complaints are private data about the parents. In addition, there are data in the decision documents that are about the parents, the students (the children of the parents), other students, and District employees. Some of those data are private and cannot be released to the public. (For information about the data classification of employees of government entities, see Minnesota Statutes, section 13.43.)</p> <p>The United States Department of Education recently adopted changes to the federal regulations implementing FERPA. The changes were effective January 8, 2009. The Family Compliance Policy Office of the Department has provided a link to a discussion of the changes, which appears in the <a href="https://www.govinfo.gov/content/pkg/FR-2008-12-09/pdf/FR-2008-12-09.pdf">December 9, 2008, Federal Register</a>. The following is an excerpt from that analysis:</p> <p class="opinion_quote"><em><strong>Section 99.31(b) De-identification of information.</strong> Education records may be released without consent under FERPA if all personally identifiable information [PII] has been removed.</em></p> <p class="opinion_quote"><em>The regulations add that PII includes "other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty."Under the final regulations, PII also includes "information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates."</em></p> <p class="opinion_quote"><em>The definition of PII provides objective standards for districts. The disclosing party must look to local news, events, and media coverage in the "school community" in determining whether "other information" (i.e., information other than direct and indirect identifiers listed in the definition of PII), would make a particular record personally identifiable even after all direct identifiers have been removed. In regard to so-called targeted requests, the final regulations clarify that a party may not release information from education records if the requester asks for the record of a particular student, or if the party has reason to believe that the requester knows the identity of the student to whom the requested records relate.</em></p> <p class="opinion_quote"><em>The regulations recognize that the risk of avoiding the disclosure of PII cannot be completely eliminated and is always a matter of analyzing and balancing risk so that the risk of disclosure is very low. The reasonable certainty standard in the new definition of PII requires such a balancing test.</em></p> <p>The question before the Commissioner is whether the data in the two OCR decisions are classified such that the District is prohibited from releasing the decisions. In situations such as this, the government entity clearly is in the best position to make the determination because it has all of the relevant information and is knowledgeable about the circumstances.</p> <p>The Commissioner, though, offers the following guidance. First, the District cannot release any of the data in the decisions that are classified as private by sections 13.32 and 13.43.</p> <p>Second, the District needs to consider the discussion in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267622" title="04-014" target="_blank">Advisory Opinion 04-014</a> about data that are inextricably intertwined:</p> <p class="opinion_quote">In <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509 (Minn.App. 1993), the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value.</p> <p class="opinion_quote">Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in <em>Northwest Publications, Inc.</em>, maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately. Given the clear presumption of openness in Chapter 13, the District should make every effort to avoid a situation where it must withhold an entire document from the public.</p> <p>Third, the District needs to give careful consideration to the amended FERPA definition of personally identifiable information. The question the District must answer is whether, given the situation, the redacted decisions alone or in combination with other information is linked or can be linked to a specific student such that a "reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, [would be able] to identify the student with reasonable certainty." (34 C.F.R. section 99.3.)</p> <p>Finally, the Commissioner notes that the opinion documents as maintained by the OCR are government records subject to the Federal Freedom of Information Act. Therefore, a person seeking the documents could make an information request to the OCR under the federal Act.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Waldspurger and Ms. Sobieck raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Any data in the two Office of Civil Rights decisions (OCR) that are private pursuant to Minnesota Statutes, sections 13.32 and 13.43 cannot be released. The District must determine whether 34 C.F.R. section 99.31(b)(1) prohibits the release of additional data.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 2, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2670502663162022-01-19T19:17:56Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266867" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-03-24T15:14:43ZDid the Metro Gang Strike Force comply with Minnesota Statutes, Chapter 13, in response to a request from X for access to data about X?March 24, 2009; Metro Gang Strike Force36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On December 31, 2008, the Information Policy Analysis Division (IPAD) received a letter from "X," in which X asked the Commissioner to issue an advisory opinion regarding his/her right to have access to certain data the Metro Gang Strike Force maintains. In response, IPAD informed X that because the Commissioner had already specifically addressed the issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704" title="07-011" target="_blank">Advisory Opinion 07-011</a>, she would not issue an opinion.</p> <p>However, IPAD was aware of the history of X's attempts to get access to data from the Strike Force, and therefore made efforts to assist X in getting access to the data. John D. Gross, Assistant Attorney General, first suggested that IPAD contact James Heimerl, then Acting Commander of the Strike Force, as responsible authority for the data, which IPAD did, in an email dated January 12, 2009. Commander Heimerl did not respond; Mr. Gross then suggested contacting Commander Chris Omodt, which IPAD did, in an email dated February 10, 2009.</p> <p>IPAD's efforts to assist X in getting access to the data in question were unsuccessful. Given the unique circumstances, IPAD, on behalf of the Commissioner, wrote to Commander Omodt, in a letter dated February 19, 2009, to notify him that the Commissioner was moving forward with X's request and to ask him to provide information or support for the Strike Force's position. Commander Omodt did not submit comments.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Metro Gang Strike Force comply with Minnesota Statutes, Chapter 13, in response to a request from X for access to data about X?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>The Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704" title="07-011" target="_blank">Advisory Opinion 07-011</a>:</p> <p class="opinion_quote">The following analysis is based on the understanding that the Metro Gang Strike Force is a joint powers entity created by multiple counties and cities. (See Minnesota Statutes, section 471.59 - joint exercise of powers.) The Commissioner also understands that Ramsey County is the fiscal agent for the Strike Force and that Sheriff Fletcher is the responsible authority. As previous advisory opinions have discussed, for the purposes of Minnesota Statutes, Chapter 13, a joint powers entity is a statewide system. Therefore, the Strike Force is subject to the requirements of Chapter 13.</p> <p class="opinion_quote">It appears the data X requested are law enforcement data classified pursuant to section 13.82. Some law enforcement data are public, some are private, and some are confidential.</p> <p class="opinion_quote">Regarding any data of which X is the subject, X is entitled to gain access to the data classified as public and private. The Strike Force should have provided a response to X about these data within ten business days. (See section 13.04, subdivision 3.) X first made a request for the data in a letter dated February 15, 2007. As of the date of X's opinion request, over six weeks later, apparently X had not received any response. The Strike Force did not comply with Chapter 13.</p> <p class="opinion_quote">Regarding any data of which X is not the subject, X is entitled to gain access to the data classified as public. The Strike Force should have provided a response to X about these data in a prompt and appropriate manner, and within a reasonable time. (See section 13.03, subdivision 2, and Minnesota Rules 1205.0300.) Again, by not providing any response to X before April 11, 2007, the Strike Force did not comply with Chapter 13.</p> <p>Subsequently, X filed an action to compel compliance. (See Minnesota Statutes, section 13.08, subdivision 4.) The outcome, as it relates here, is that Sheriff Fletcher was not the responsible authority for the Strike Force, and X was instructed to direct his/her data request to the Strike Force office.</p> <p>In a letter dated November 3, 2008, X wrote to Ron Ryan, then Strike Force Commander, stating X's understanding that Commander Ryan was the responsible authority, and asking for access to data about him/herself, which, as noted in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704" title="07-011" target="_blank">07-011</a>, appear to be law enforcement data classified at section 13.82. X wrote again on December 8, 2008, because Commander Ryan did not respond. (In a press release dated December 18, 2008, the Strike Force announced that Commander Omodt was succeeding Commander Ryan, who announced his retirement earlier in 2008.)</p> <p>Again, as the Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704" title="07-011" target="_blank">07-011</a>, the Strike Force had ten business days, from the date it received X's November 3, 2008, request for data, to supply X with public and private data about X. Also, the Strike Force should have provided X with access to any public data of which X is not the subject in a prompt and appropriate manner, and within a reasonable time. The Strike Force did not comply with Chapter 13.</p> <p>In addition, as a statewide system, the Strike Force is obligated to clearly identify the individual who is its responsible authority (see Minnesota Statutes, section 13.02, subdivisions 16 and 17, and Minnesota Rules, part 1205.0200, subpart 15), so that individuals may exercise the rights granted them under Chapter 13.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that X raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Metro Gang Strike Force did not comply with Minnesota Statutes, Chapter 13, in response to a request from X for access to data about X.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 24, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2668672666402022-01-19T19:17:56Z266258266314266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267138" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-03-19T15:14:43ZDid the City of Montrose comply with Minnesota Statutes, Chapter 13, in response to a request, dated January 10, 2009, for access to certain data? March 19, 2009; City of Montrose36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On February 13, 2009, the Information Policy Analysis Division (IPAD) received an email, dated February 12, 2009, from Evan Siljander. In his email, Mr. Siljander asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data the City of Montrose maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Barbara Swanson, City Administrator, Clerk, Treasurer, in response to Mr. Siljander's request. The purposes of this letter, dated February 19, 2009, were to inform her of Mr. Siljander's request and to ask her to provide information or support for the City's position. Ms. Swanson responded, in an email dated March 4, 2009. She included a copy of a January 5, 2009, email intended for IPAD, that, unfortunately, she addressed to an invalid email address. (ipad@state.mn.us rather than info.ipad@state.mn.us.)</p> <p>A summary of the facts follows. In an email dated January 10, 2009 (a Saturday), Mr. Siljander asked to review the "January 12 2009 Council Agenda Digital Word Document." In an email dated February 24, 2009 (a Saturday), Mr. Siljander wrote to Ms. Swanson, asking for an update on his request. In his opinion request, Mr. Siljander stated that he had not received a response. He asked the Commissioner to address his right to get access to the agenda in Microsoft Word format.</p> <p>In her comments to the Commissioner, Ms. Swanson wrote:</p> <p class="opinion_quote">On January 5, 2009, I submitted a request to IPAD for clarification related to emailing documents in the Microsoft program WORD [attached]. On January 8, 2009 I responded to Mr. Siljander's request for WORD documents with an explanation that I was waiting for a reply from IPAD of which [sic] I provided a copy of the request to Mr. Siljander. On January 12th I responded to Mr. Siljander twice that I was waiting for a reply from IPAD.</p> <p class="opinion_quote">I would like to add that Mr. Siljander had received all of the information he requested as WORD documents in a PDF format. Mr. Siljander was never without the data he was requesting; the issue was a different format.</p> <p>Ms. Swanson wrote that the City, after consultation with IPAD staff, had provided Mr. Siljander with access to the agenda in Word format.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Siljander's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Montrose comply with Minnesota Statutes, Chapter 13, in response to a request, dated January 10, 2009, for access to certain data?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>There is no question that the City Council agenda is public. The issue is whether the City was obliged to provide Mr. Siljander with the data he requested in the format he requested. The Commissioner has opined previously that Chapter 13 does not require government entities to create data or provide data in a format other than that which the entity maintains. (See, for example, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267507" title="01-012" target="_blank">Advisory Opinion 01-012</a>.)</p> <p>According to Ms. Swanson, the City "typically converts Word documents to PDF so they cannot be altered." The City also maintains the data in Word format. As noted above, government entities are not obliged to convert data to a particular format in response to a data request. However, they are obligated, upon request, to provide access to data in whatever format they do maintain them. (Minnesota Statutes, section 13.03, subdivision 3(e).) Accordingly, in response to Mr. Siljander's request, the City should have provided him access to the data in Word format. According to Ms. Swanson, the City has now done so.</p> <p>The City's response here was complicated by its unsuccessful attempt to contact IPAD for assistance. Mr. Siljander stated that the City did not respond at all to his January 10 request. However, Ms. Swanson emailed Mr. Siljander twice on Monday January 12, (i.e., the day the City received his request) and informed him that she was waiting for an answer from IPAD before responding to his request.</p> <p>The Commissioner also notes that she is aware that the City and Mr. Siljander have numerous, on-going data practices issues. She encourages both parties to make attempts to resolve those disputes, perhaps by seeking assistance from a community mediation center.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Siljander raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Montrose did not comply with Minnesota Statutes, Chapter 13, in response to a request, dated January 10, 2009, for access to certain data. It has now done so.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 19, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2671382666542022-01-19T19:17:56Z266258266297266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267161" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-02-26T16:14:43ZDid the City of Duluth comply with Minnesota Statutes, Chapter 13, in denying access to certain dog licensing data? Is the City of Duluth’s charge of $210 for a copy of certain dog licensing data in compliance with Minnesota Statutes, Chapter 13?February 26, 2009; City of Duluth36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On January 7, 2009, the Information Policy Analysis Division (IPAD) received a letter dated same, from Brandon Stahl, of the <em>Duluth News Tribune</em>. In his letter, Mr. Stahl asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the City of Duluth.</p> <p>On behalf of the Commissioner, IPAD wrote to Lisa Potswald, Chief Administrative Officer for the City, in response to Mr. Stahl's request. The purposes of this letter, dated January 16, 2009, were to inform her of Mr. Stahl's request and to ask her to provide information or support for the City's position. On February 5, 2009, IPAD received a response, dated same, from Alison Lutterman, Deputy City Attorney.</p> <p>A summary of the facts as provided by Mr. Stahl is as follows. In an October 23, 2008, email, Mr. Stahl asked for all public data the City maintains related to dog license registrations. In a previous email, Ms. Lutterman stated that some of the data are public and some are not public. Ms. Lutterman stated that owner name, address, and phone number are not public pursuant to Minnesota Statutes, section 13.37, security data. She stated that dog or cat name, breed, color, sex, rabies expiration date/clinic, and alteration date/clinic are public.</p> <p>Mr. Stahl disagreed with the City's basis for withholding the owner name and address.</p> <p>In addition, in a November 20, 2008, email, Ms. Lutterman advised Mr. Stahl that the charge for a copy of the public data in the database would be $210.</p> <p>In a December 11, 2008, email, Ms. Lutterman wrote:</p> <p class="opinion_quote">Your request is not a query that has been received in the past. Therefore, it requires programming hours, as well as operations hours to process and create the output. The cost covers the cost of programming and operations time to create the custom request.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Stahl's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the City of Duluth comply with Minnesota Statutes, Chapter 13, in denying access to certain dog licensing data?</li> <li>Is the City of Duluth's charge of $210 for a copy of certain dog licensing data in compliance with Minnesota Statutes, Chapter 13?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Did the City of Duluth comply with Minnesota Statutes, Chapter 13, in denying access to certain dog licensing data?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In her comments to the Commissioner, Ms. Lutterman argues that the data in question are protected under Minnesota Statutes, section 13.37, security information. 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. Section 13.37, subdivision 2, classifies security information as not public.</p> <p>Ms. Lutterman wrote:</p> <p class="opinion_quote">It is reasonable and not arbitrary to assume that some people who seek data do so for improper reasons and disclosure of those persons would be likely to put a person or property in substantial jeopardy. For example, classifying the data at issue in this dispute public could expose a person and their property to harm when they are involved in a contentious personal dispute Protecting the location and phone number of a victim of an abusive relationship is an important public interest.</p> <p class="opinion_quote">some breeds are highly prized and are more likely to be stolen while others are targeted for hate crimes. Disclosing the location of such animals would expose their owners to theft or the destruction of their property.</p> <p>Based on Ms. Lutterman's comments, it appears the City is applying a blanket approach in using the security information provision to protect otherwise public data. In previous advisory opinions, the Commissioner has opined that this is not how the Legislature intended entities to employ section 13.37. For example, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267047" title="98-046" target="_blank">Advisory Opinion 98-046,</a> the Commissioner wrote:</p> <p class="opinion_quote">Accordingly, a government entity's discretion to withhold data as not public is limited to those situations in which there is a likelihood of <u>substantial jeopardy</u>to security. In his comments, Mr. Clark stated that in certain situations, the MMCD has reason to believe that dissemination of some of the data in question might place some individuals or their property at risk of harm. In those limited situations, the MMCD may properly treat the data as security information under Section 13.37. However, the protection provided by that Section does not apply to all data collected by the MMCD that relate to its services.</p> <p>Further, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267810" title="01-029" target="_blank">Advisory Opinion 01-029</a>, the Commissioner wrote:</p> <p class="opinion_quote">For example, in conversation with IPA staff, County staff mentioned a situation involving domestic abuse, in which a woman asked that the data not be made available to her former partner, whom she had reason to fear. In such a case, a classification as not public under section 13.37 might be appropriate. However, the County may not withhold from the public all addresses and telephone numbers because it is concerned about the possibility, in general, of a security risk. In order for section 13.37, subdivision 1 (a), to be applicable, the County must make a determination on a case-by-case basis.</p> <p>In addition, the City's argument that it is necessary to withhold all licensee names and addresses because some of the licensees may be victims of domestic violence is made moot by the Safe at Home Program, which is sponsored by the Minnesota Secretary of State. Pursuant to Minnesota Statutes, Chapter 5B, a victim of domestic violence, sexual assault, or stalking who applies and is accepted into the program, is assigned a new address. All private and public entities must accept the newly assigned address as the participant's actual address of residence and employment. The stated purpose of Chapter 5B is to "enable state and local agencies to respond to requests for data without disclosing the location of a victim of domestic violence, sexual assault, or stalking." (Minnesota Statutes, section 5B.01.)</p> <p>For the reasons stated above, the Commissioner does not agree that the City can withhold the names and addresses of all dog licensees because the data are security information. While there may be specific, individual cases in which there are legitimate security reasons for withholding the information, they are not at issue here. If the City believes names and addresses of dog licensees should be private data, it needs to seek a specific classification from the Minnesota Legislature.</p> <h2>Issue 2:</h2> <p><em>Is the City of Duluth's charge of $210 for a copy of certain dog licensing data in compliance with Minnesota Statutes, Chapter 13?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, people have the right to get copies of government data. Pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), when a person asks for electronic copies, the government entity may require the person to pay the actual cost of searching for and retrieving the data, including the cost of employee time, and for making and electronically transmitting the data.</p> <p>Here, the City charged Mr. Stahl $210 for a copy of the dog license data.</p> <p>In her comments to the Commissioner, Ms. Lutterman wrote:</p> <p class="opinion_quote">The City's fee for a custom query is a minimum fee of $210 as published in the City's 2008 fee schedule This fee is based on the average time it takes for programming and operational costs on the average customer query request. The system that this information resides in is within an application which resides on the City's legacy mainframe system. Therefore, it is not a simple query to extract this data at this time.</p> <p>She also wrote:</p> <p class="opinion_quote">the request was not a query that had been previously requested. Therefore, retrieving the data required programming hours as well as operations hours to process and create the output.</p> <p class="opinion_quote">MIS was recently asked to provide a detail of actual costs to produce this specific request. The actual cost is calculated to be $224.50 which exceeds the 2008 published fee schedule.</p> <p>Ms. Lutterman included a breakdown of the charge: $98 ("programming costs for creating the report": 2 hours @ $49/hour) plus $18 ("operations staff costs for running the job": .5 hours @ $36/hour) plus $108.50 ("transfer programming costs for creating the mechanism for extracting the report from the legacy file structure into an acceptable format for transmission to the requestor": programming for 1 hour @ $49/hour and .5 hours @ $23.5/hour, and operations staff costs for 1 hour @ $36/hour).</p> <p>Mr. Stahl asked for a copy of the dog license data the City maintains. As discussed in Issue 1, the City's position is that some of the data are public and some are not public.</p> <p>As part of the actual cost for making Mr. Stahl a copy of the data, the City can include what it costs for staff to search for and retrieve the data, and what it costs to print the copy and mail it or attach the copy to an email. The City cannot charge what it costs to separate the public from the not public data. The Commissioner is aware that many government entities continue to operate legacy mainframe systems that were not designed to allow easy access to public data. In fact, many of these systems pre-date Minnesota Statutes, Chapter 13, and the requirement that entities keep their records "in such an arrangement and condition as to make them easily accessible for convenient use." (Minnesota Statutes, section 13.03, subdivision 1.) The City has indicated it will be replacing its current system in the near future. The Commissioner encourages the City to design their new system in a manner to allow more efficient access to public data.</p> <p>Because Ms. Lutterman did not clearly explain how the specific costs she describes represent the actual cost of making a copy of the data, the Commissioner cannot determine with certainty whether the City's charge is appropriate. While the total fee seems high, the Commissioner acknowledges that it often takes more time to retrieve data from antiquated computer systems than newer systems and that government entities can charge to search for and retrieve data. It is reasonable that the City may need to spend time tagging the categories of data elements (searching for and retrieving) that are responsive to Mr. Stahl's request. However, the Commissioner does not know whether two hours is a reasonable time for the City to spend searching for and retrieving the data.</p> <p>In addition, while the Commissioner does not understand the meaning of "transfer programming costs for creating the mechanism for extracting the report from the legacy file structure into an acceptable format for transmission to the requestor," it is not appropriate for Mr. Stahl to bear the cost if the City does not maintain its data in such a format that is understandable to the public. Or, if the issue is the City believes it must format the data for particular software, e.g., Excel or Word, this is not the case. If Mr. Stahl had asked for the data in a format that is different from the way the City maintains the data, the City could ask Mr. Stahl to pay extra for any conversion. However, it does not appear Mr. Stahl asked for the data in a particular format.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Stahl raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The City of Duluth did not comply with Minnesota Statutes, Chapter 13, in denying access to certain dog licensing data.</li> <li>The Commissioner cannot determine with certainty whether the City of Duluth's charge of $210 for a copy of certain dog licensing data is in compliance with Minnesota Statutes, Chapter 13.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 26, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2671612667972022-01-19T19:17:56Z266258266511266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267188" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-01-28T16:14:43ZDid the Minnesota Management & Budget comply with Minnesota Statutes, Chapter 13, in responding to a request for the race, gender, and disability status of state employees by agency?January 28, 2009; Minnesota Management and Budget36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On December 10, 2008, the Information Policy Analysis Division (IPAD) received a letter dated December 8, 2008, from John Gilbertson. In his letter, Mr. Gilbertson asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from Minnesota Management and Budget (MMB).</p> <p>IPAD, on behalf of the Commissioner, wrote to Tom Hanson, Commissioner of MMB, in response to Mr. Gilbertson's request. The purposes of this letter, dated December 12, 2008, were to inform him of Mr. Gilbertson's request and to ask him to provide information or support for MMB's position. On January 5, 2009, IPAD received a response, dated December 19, 2008, from Commissioner Hanson.</p> <p>A summary of the facts as Mr. Gilbertson provided them is as follows. On February 14, 2008, Mr. Gilbertson requested the following data, "I wish to make a data request for updated information as to the race, gender, disability status of state employee by agency and by the state as a whole."</p> <p>MMB responded on March 14, 2008:</p> <p class="opinion_quote">we have created a disk with all the information you requested and it is available Please note that this disk contains a separate pdf file for each agency and all data that could be considered private (10 or less employees in any one field) has been redacted.</p> <p>Mr. Gilbertson objected to MMB's response.</p> <p>On May 12, 2008, MMB responded:</p> <p class="opinion_quote">Please understand that the reason for our practice of redacting private data statistics of 10 or fewer employees in any one field of a report is not to hinder you in your desired analysis but to protect the identity and private data of these individuals per M.S. 13.43. If these smaller statistics were released, regardless of your intent, a second public data request for names of people in the same group could be asked for by you, or anyone else who could come in contact with this report, and the comparison of two such requests could potentially identify these people.</p> <p class="opinion_quote">I cannot speak to how this information was released in the past but it appears that it was an anomaly. While the same practice of redacting statistics of 10 employees or fewer was used it was not consistent with our practice of redacting private data fields.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Gilbertson's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Minnesota Management Budget comply with Minnesota Statutes, Chapter 13, in responding to a request for the race, gender, and disability status of state employees by agency?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private. Of relevance here, an employee's name is public data but his/her gender, race, and disability status are private.</p> <p>In his comments to the Commissioner (of Administration), Commissioner Hanson wrote:</p> <p class="opinion_quote">The department will provide data on gender, race, and disability status to the best of its ability for inquiries regarding state employee demographics. That is either at the aggregate statewide level or by department/agency. However, the department has routinely declined to issue data where the count is ten employees or fewer in any one data field. In the larger pool of aggregated data there is little danger of the information identifying a specific individual. In the smaller pool of fewer than ten employees, the probability of data identifying a specific individual increases greatly.</p> <p class="opinion_quote">As an illustration, if these smaller statistics were released, regardless of intent, a second public data request for names of people in the same group could be asked for by the original requestor, or anyone else who could come in contact with this report, and the comparison of two such requests could potentially identify people.</p> <p>Minnesota Statutes, section 13.02, subdivision 19, defines summary data as, "statistical records and reports derived from data on individuals but in which individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable." Thus, in responding to requests for summary or statistical data, government entities have an obligation to release statistical information in such a way that specific individuals are not identified.</p> <p>Here, Mr. Gilbertson asked for a breakdown of state employees, according to department, by race, gender and disability status (disabled or not disabled). (For reasons unknown to the Commissioner, MMB broke down the data in each department according to certain job categories.)</p> <p>Mr. Gilbertson attached to his opinion request some of the data he received in response to his request. One example is from the Minnesota Department of Education. The document from MMB indicates there are 29 employees who fall within the <em>Officials and Administrators</em> category. In this grouping, MMB provided no statistical information regarding gender, ethnic group, or disability status presumably because there are fewer than ten employees who are either male or female; fewer than ten employees who are either disabled or not disabled; and fewer than ten employees who are white, black/African American, Hispanic/Latino, Asian/Pacific Islander, American Indian/Alaskan Native, or not specified. As MMB did not provide the Commissioner with the actual data, she cannot determine whether there was a substantial risk that Mr. Gilbertson would have been able to determine gender, disability status, or ethnic group of certain employees if he had obtained their names through a subsequent request for public data.</p> <p>Another example is from the Minnesota Department of Education - the <em>Paraprofessionals</em> category. In this group there is only one employee. Here, if MMB had provided statistical information indicating this person was female and Mr. Gilbertson had obtained the employee's name, he would have obtained private data about the employee. If MMB had provided statistical information indicating this person was white and Mr. Gilbertson had obtained the employee's name, he would have obtained private data about the employee. If MMB had provided statistical information indicating this person was not disabled and Mr. Gilbertson had obtained the employee's name, he would have obtained private data about the employee. Here, therefore, MMB's response to Mr. Gilbertson was appropriate.</p> <p>It is commendable that MMB is trying to protect its private data; however, it also has an obligation to release public data. The Commissioner is not sure that a "one size fits all" policy is the best approach to striking this balance and she is not convinced that a group size of ten or fewer is an appropriate cut off for refusing to provide any statistical information. Frequently, it is the composition of the group and not its size that raises the risk that individuals can be identified. For example, in an agency of 100 employees, if all of the employees are disabled, releasing any statistical information about disability status would identify each of the employees as being disabled. Conversely, if an agency of ten has five disabled and five non-disabled employees, the risk of identifying each employee's disability status is greatly reduced.</p> <p>The difficulty in providing uniform guidance on this issue is that different government entities collect, create, and maintain different types of data that may or may not be classified similarly by Chapter 13. For example, the names of government employees are public but the names of individuals receiving public assistance are not. The names of public school students may or may not be public depending upon how each school district decides to treat the data. To respond appropriately to summary data requests, each government entity then must have a good working knowledge of how its data are classified. Thus, if uniform guidance is impractical, handling these types of requests on a case-by-case basis may make the most sense. The Commissioner encourages entities to work with data requestors on different ways to provide summary data to reduce the risk that individual data subjects would be identified, such as grouping data categories and datasets together.</p> <p>That said, the Commissioner welcomes some type of clarification from the Legislature on this issue. Without additional legislative guidance, each government entity must continue to weigh the risk that summary data can be attributed to an individual and balance the entity's obligations to both protect private data and make public data available.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Gilbertson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Because the Commissioner has not seen the data in question, she cannot determine whether Minnesota Management Budget complied with Minnesota Statutes, Chapter 13, in responding to a request for the race, gender, and disability status of state employees by agency. However, setting an arbitrary number for employee groupings may or may not protect employees' private information, depending on the composition of the group, so the Commissioner recommends that a case-by-case analysis be used instead.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 28, 2009</p> </td> </tr> </tbody> </table> </div>2671882665142022-01-19T19:17:54Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267398" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-01-27T16:14:43ZDoes Minnesota Statutes, Chapter 13, require Knutson, Flynn & Deans to provide to KSTP-TV any list Knutson, Flynn & Deans created setting forth the public schools or school districts it has represented from 2003 to 2008? Does Minnesota Statutes, Chapter 13, require Knutson, Flynn & Deans to provide to KSTP-TV copies of contracts between Knutson, Flynn & Deans and any public school or school district between 2003 and 2008? Does Minnesota Statutes, Chapter 13, require Knutson, Flynn & Deans to provide any bills Knutson, Flynn & Deans provided to any and all public school clients for services rendered to these clients between 2003 and 2008?January 27, 2009; Knutson, Flynn and Deans36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On December 12, 2008, the Information Policy Analysis Division (IPAD) received a letter dated same, from Thomas Deans and Jennifer Earley, on behalf of the Knutson, Flynn Deans law firm. In their letter, Mr. Deans and Ms. Earley asked the Commissioner to issue an advisory opinion regarding their obligation to provide certain data to Kristi Piehl of KSTP-TV.</p> <p>In a letter dated December 17, 2008, IPAD invited James Barnum, Deputy General Counsel for Hubbard Broadcasting, Inc., to submit comments. On January 6, 2009, IPAD received comments from Mark Anfinson, on behalf of Mr. Barnum.</p> <p>A summary of the facts as Mr. Deans and Ms. Earley provided them is as follows. In a letter dated September 5, 2008, Ms. Piehl asked for the following data:</p> <p class="opinion_quote">1. Documentation showing the identity of all public schools and public school districts for which Knutson, Flynn and Deans, P.A. has performed professional services between 2003 and 2008.</p> <p class="opinion_quote">2. Contracts between Knutson, Flynn Deans, P.A. and any public school or school district, regardless of the location, between 2003 and 2008.</p> <p class="opinion_quote">3. Any and all faxed, mailed or emailed bills delivered or sent to any public school or public school district, regardless of the location, between 2003 and 2008.</p> <p>In a letter dated September 17, 2008, Mr. Deans denied Ms. Piehl access to the data: "In summary, the data you have requested is not government data, does not exist, is not maintained by our firm on behalf of any government entity and/or is not maintained solely by our firm."</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on the opinoin request from Mr. Deans and Ms. Earley, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn Deans to provide to KSTP-TV any list Knutson, Flynn amp; Deans created setting forth the public schools or school districts it has represented from 2003 to 2008?</li> <li>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn Deans to provide to KSTP-TV copies of contracts between Knutson, Flynn amp; Deans and any public school or school district between 2003 and 2008?</li> <li>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn Deans to provide any bills Knutson, Flynn amp; Deans provided to any and all public school clients for services rendered to these clients between 2003 and 2008?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <h2>Issue 1:</h2> <p><em>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn Deans to provide to KSTP-TV any list Knutson, Flynn Deans created setting forth the public schools or school districts it has represented from 2003 to 2008?</em></p> <p>Government entities (subject to Minnesota Statutes, Chapter 13) often contract with non-government organizations (not subject to Chapter 13) to perform functions on their behalf. Chapter 13 discusses these contractual relationships in several provisions, the most recently-enacted of which is section 13.05, subdivision 11. Clause (a) states:</p> <p class="opinion_quote">If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p>Clause (b) states: </p> <p class="opinion_quote">This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>In his opinion request, Mr. Deans wrote:</p> <p class="opinion_quote">any client list our law firm may have created or maintains is not government data Clearly, Knutson, Flynn Deans is not a government entity. While we represent government entities, we are a private, for profit law firm. As such, data we create and maintain in the course of operating our law firm is not subject to [Chapter 13].</p> <p>In his comments to the Commissioner, Mr. Anfinson wrote:</p> <p class="opinion_quote">It is our position that because no government entity has the unique data set that has been requested from Knutson, Flynn, the exception found in paragraph (b) does not apply.</p> <p class="opinion_quote">Though Knutson, Flynn unquestionably maintains this information, it is difficult to believe that any individual government entity also does.</p> <p class="opinion_quote">In theory, it might be possible for a requester seeking this information to contact every school district in the state and ask if it has ever received legal services from Knutson, Flynn. But we cannot imagine that section13.05, subd. 11 actually requires this. Most important, it would impose an enormously burdensome and time-consuming task, since there are 341 public school districts in the state of Minnesota</p> <p class="opinion_quote">The importance of this conclusion is further reinforced if one considers other possible situations also covered by section13.05, subd. 11. For example, where a large private vendor dealt over time with hundreds or thousands of government entities, it would be nearly impossible for citizen requesters to contact every one of them in order to determine if they had ever been engaged in a contact or business relationship with the vendor.</p> <p>When Knutson, Flynn enters into an agreement/arrangement/contract to perform work on behalf of a public school/school district, data it creates, collects, maintains, <em>related to performing the agreed-upon work</em>, are subject to the requirements of Chapter 13. Thus, if a person makes such a data request, and those data are not available from the school district, Knutson, Flynn must provide the data. (The length of time the data must be maintained is governed by records management statutes, primarily Minnesota Statutes, sections 15.17 and 138.17.)</p> <p>In this case, however, Ms. Piehl did not make a request for data relating to Knutson, Flynn performing work on behalf of a specific school district. Rather, she asked for data that list or document the names of all the school districts Knutson, Flynn represented from 2003 - 2008. Although Knutson, Flynn most likely maintains these data, it is the Commissioner's belief that section 13.05, subdivision 11, does not require private person contractors, such as Knutson, Flynn, to provide data in response to this type of request.</p> <p>An interpretation such as Mr. Anfinson suggests seems beyond what the Minnesota Legislature contemplated when it enacted section 13.05, subdivision 11, especially given the requirement that data requestors can seek data from a private person contractor only if the data are not available from the government entity.</p> <p>That said, the issue Mr. Anfinson raises deserves further consideration. As Mr. Anfinson described, the structure established to implement the provisions of Chapter 13 frustrates the ability of the public to gain access to data that document the extent of contracting being performed by a single outside firm, such as Knutson, Flynn. Since current statutory language does not allow this, the Commissioner encourages the Legislature to consider the issue.</p> <h2>Issue 2:</h2> <p><em>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn amp; Deans to provide to KSTP-TV copies of contracts between Knutson, Flynn amp; Deans and any public school or school district between 2003 and 2008?</em></p> <p>See Issue 1.</p> <h2>Issue 3:</h2> <p><em>Does Minnesota Statutes, Chapter 13, require Knutson, Flynn Deans to provide any bills Knutson, Flynn Deans provided to any and all public school clients for services rendered to these clients between 2003 and 2008?</em></p> <p>See Issue 1.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Deans and Ms. Earley raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Minnesota Statutes, Chapter 13, does not require Knutson, Flynn amp; Deans to provide to KSTP-TV data documenting the public schools or school districts it has represented from 2003 to 2008. However, if KSTP-TV has requested data from a school district related to Knutson, Flynn's representation of the district, and Knutson, Flynn, not the district, maintains the data, Knutson, Flynn must provide the data to KSTP-TV.</li> <li>See Issue 1.</li> <li>See Issue 1.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 27, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2673982662802662812022-01-19T19:17:54Z266258266309266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266903" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-01-21T16:15:43ZIn Advisory Opinion 08-022, the Commissioner of Administration opined that certain data supplied by private electric companies (the property addresses for properties that have gone without power for more than thirty days and the reason for the power shut off) are public. In light of a new law enacted during the 2008 Legislative Session, Minnesota Statutes, section 216B.0976, can the City still rely on 08-022?January 21, 2009; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On December 15, 2008, the Information Policy Analysis Division (IPAD) received an email from Chad Staul, Assistant City Attorney, City of Saint Paul. In his email, Mr. Staul asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>IPAD, in a letter dated December 15, 2008, invited Teri Anderson, Attorney for Xcel Energy, to submit comments. On December 29, 2008, IPAD received a response from Ms. Anderson.</p> <p>A summary of the facts is as follows. In his opinion request Mr. Staul wrote:</p> <p class="opinion_quote">I am requesting a formal opinion to re-evaluate IPAD's opinion 08-022 which I requested regarding utility shut off data. I am asking that the same question be answered in a formal opinion in light of Minn. Stat. 216B.0976. That statute appears to cover utility shut off data by classifying it as private. The facts for this opinion are found in Opinion 08-022.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Staul's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>In Advisory Opinion 08-022, the Commissioner of Administration opined that certain data supplied by private electric companies (the property addresses for properties that have gone without power for more than thirty days and the reason for the power shut off) are public. In light of a new law enacted during the 2008 Legislative Session, Minnesota Statutes, section 216B.0976, can the City still rely on 08-022?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266639" title="08-022" target="_blank">Advisory Opinion 08-022</a>, the facts were that Saint Paul Legislative Code Chapter 46 required private (non-government) electric companies to provide to the City a notice whenever service was discontinued for any reason. According to Minnesota Statutes, Chapter 13, once the property address and reason for discontinuation were in the City's possession, they were government data. The Commissioner then opined that because no provision classified these data as not public, they were public. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>The question Mr. Staul now asks is how Minnesota Statutes, section 216B.0976 (enacted during the 2008 Legislative Session), impacts the conclusion reached in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266639" title="08-022" target="_blank">08-022</a>. Subdivision 1 of 216B.0976 requires utilities, including Xcel Energy to, upon written request from a city, submit each October 15 and November 1, a report of the addresses of properties currently disconnected (from gas or electric service) and the date of the disconnection. In addition, upon written request of a city, between October 15 and April 15, daily reports must be made available of the address and date of any newly disconnected properties.</p> <p>Section 216B.0976, subdivision 2, provides that the data utilities submit to a city pursuant to section 216B.0976 are classified as not public.</p> <p>Thus, while the new law classifies, as not public, data that non-government electric and gas utilities submit to a city under subdivision 1 of section 216B.0976, it is silent as to the classification of data a non-government utility submits to a city under different circumstances, such as the Saint Paul ordinance the Commissioner discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266639" title="08-022" target="_blank">08-022</a>.</p> <p>In her comments to the Commissioner, Ms. Anderson wrote:</p> <p><em>[<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266639" title="08-022" target="_blank">Advisory Opinion 08-022</a>] concluded that certain data provided to Minnesota cities by [non-public] electric companies are public. Based on various amendments in 2008, I disagree with this opinion.</em></p> <p><em>Minnesota law requires public utilities to make available to any requesting city, the address of properties currently disconnected and the date of the disconnection during the state's "Cold Weather" period. This statute also specifies that all data on customers so provided to the cities is [not public data].</em></p> <p><em>Because the 2008 amendments specifically classify heat-affected disconnection by a public utility as [not public data], Advisory Opinion 08-022 should be re-evaluated.</em></p> <p>Minnesota Statutes, Chapter 645, discusses interpretation of statutes. Section 645.17, states that when ascertaining legislative intent, it is presumed the Minnesota Legislature does not intend a result that is unreasonable.</p> <p>Here, one provision - 13.03, subdivision 1 - provides that property addresses and reasons for shutoff submitted pursuant to Saint Paul's ordinance are public because nothing specifically classifies the data as not public. The other provision - section 216B.0976, subdivision 2 - provides that when Saint Paul makes specific written requests for the data between October 15 and April 15, and the utilities provide the data, the data are not public.</p> <p>Thus, if Saint Paul continues to enforce its ordinance and never makes written requests to the utilities, the data submitted by the utilities would be public. But if City X, that has no ordinance, makes requests to the utilities between October 15 and April 15, similar data maintained by City X data would be protected. This result seems unreasonable in that it creates a lack of uniformity in how the data are classified from city to city. Given the language in section 645.17, the Legislature did not intend such a result.</p> <p>Because section 216B.0976 is more specific and was enacted more recently than section 13.03, subdivision 1, the Commissioner concludes that if Saint Paul continues to require compliance with its ordinance, data submitted by non-government utilities between October 15 and April 15 are not public.</p> <p>The Commissioner acknowledges this may mean that even though the address and reason for disconnection about a particular property reported in December are not public, data about the same property reported in August are public. The Commissioner strongly encourages the Legislature to re-visit the issues discussed here to ensure this is the result it intended.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Staul is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>In light of the new language in Minnesota Statutes, section 216B.0976, the City of Saint Paul should not rely on the result reached in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266639" title="08-022" target="_blank">Advisory Opinion 08-022</a> and should treat the property address and reason for shut off data as not public when those data are reported between October 15 and April 15.                             </p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 21, 2009</p> <hr /></td> </tr> </tbody> </table> </div>2669032665052022-01-19T19:17:54Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266968" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2009-01-21T16:14:43ZDid School District 535, Rochester, comply with Minnesota Statutes, Chapter 13, in response to a request for public data relating to the termination of a District employee? January 21, 2009; School District 535 (Rochester)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On December 9, 2008, the Information Policy Analysis Division (IPAD) received a letter dated same, from Mark Anfinson, an attorney representing the <em>Rochester Post-Bulletin</em>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from School District 535, Rochester.</p> <p>IPAD, on behalf of the Commissioner, wrote to Romain Dallemand, Superintendent of the District, in response to Mr. Anfinson's request. The purposes of this letter, dated December 12, 2008, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the District's position. On January 5, 2009, IPAD received a response, dated same, from Daniel Sacco, an attorney representing the District.</p> <p>A summary of the facts as Mr. Anfinson provided them is as follows. He wrote in his opinion request:</p> <p class="opinion_quote">Earlier this year, [the District] terminated the employment of Cheryl Coryea, who at the time served as Director of Business Services. Shortly thereafter, a reporter for the newspaper requested certain information about the termination When no satisfactory response was obtained from [the District], I was asked to contact Nancy Vollertsen, the District's attorney, and renew the request, which I did.</p> <p class="opinion_quote">On March 7, 2008 Ms. Vollertsen responded as follows to the principal question I had posed to her:</p> <p class="opinion_quote"><strong>Q.</strong> It appears that Ms. Coryea's employment was terminated by the district. Section 13.43, subd. 2 of the Data Practices Act specifies various information that would consequently be public at this point, including the specific reasons for the action taken, and all data documenting the basis for the action.</p> <p class="opinion_quote"><strong>A.</strong> Ms. Coryea was employed at will by the district. Thus her employment could be terminated at any time for any or no reason. The information concerning her work performance is private data.</p> <p class="opinion_quote">The newspaper did not pursue the matter further at that time. Recently, however [another Post-Bulletin reporter] again asked the District for information about Ms. Coryea's termination from employment. Ms. Vollertsen referred him to the previous exchanges.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did School District 535, Rochester, comply with Minnesota Statutes, Chapter 13, in response to a request for public data relating to the termination of a District employee?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>In a situation where someone has complained about an employee, the fact that a complaint exists and the status of the complaint are public. (Section 13.43, subdivision 2(a)(4).) If the government entity has taken disciplinary action and a final disposition has occurred, the final disposition together with the specific reasons for the action and data documenting the basis for the action are public. (Section 13.43, subdivision 2(a)(5).)</p> <p>Section 13.43, subdivision 2(b), describes the point in time when a final disposition occurs.</p> <p>In his comments to the Commissioner, Mr. Sacco wrote:</p> <p class="opinion_quote">Minn. Stat. section 13.43, Subd. 2(a) identifies the specific categories of personnel data that are public. None of these categories of personnel data include the basis for and documentation related to the termination of an at-will employee that does not involve a disciplinary action. The only information about the end of an employee's employment that is specifically identified as public is the last date of employment and, where applicable, the terms of an agreement settling an employment dispute</p> <p class="opinion_quote">Here, there was no "disciplinary action." Rather, the District terminated Ms. Coryea's employment without a disciplinary action, which is its right because she was an at-will employee.</p> <p>Chapter 13 makes no distinction between at will and other employees. Data that a government entity maintains about all of its employees are government data and are classified pursuant to section 13.43.</p> <p>Mr. Saaco states that the District ended (terminated) Ms. Coryea's employment "without a disciplinary action." The Commissioner assumes Mr. Sacco means that the ending of Ms. Coryea's employment was not related to the District taking any disciplinary action against her and that the "termination," itself, was not disciplinary action. The District, therefore, would not have created or be maintaining data related to taking disciplinary action.</p> <p>Assuming this is correct, it seems the District has no data responsive to the newspaper's request.</p> <p>In his opinion request, Mr. Anfinson wrote:</p> <p class="opinion_quote">While Ms. Coryea may indeed have been an at-will employee of the District, information we have obtained through informal means strongly suggests that she did not leave voluntarily, and that the decision to end her employment was prompted by dissatisfaction with her performance - in other words, it was not simply "for any or no reason."</p> <p>The Commissioner cannot resolve this factual dispute. If, though, the termination of Ms. Coryea's employment with the District was related to a disciplinary action or was, in itself, disciplinary action, and there was a final disposition, the final disposition would be public as well as specific reasons for the action and data documenting the basis of the action.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Assuming the termination of the individual's employment with School District 535, Rochester, was not related to a disciplinary action or was not, in itself, disciplinary action, and there was no final disposition, there are no data responsive to the newspaper's request. In not providing any data, the District complied with Minnesota Statutes, Chapter 13.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 21, 2009</p> <hr /> </td> </tr> </tbody> </table> </div>2669682669672022-01-19T19:17:54Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267943" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-12-16T16:14:43ZDid the Ramsey County Sheriff’s Office comply with Minnesota Statutes, Chapter 13, regarding an October 3, 2008, request for data?December 16, 2008; Ramsey County Sheriff36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><p /><h2> Facts and Procedural History: <br /></h2><p> On October 23, 2008, the Information Policy Analysis Division (IPAD), received a letter, dated October 20, 2008, from Ted Dooley, an attorney, on behalf of his client, "X." In his letter, Mr. Dooley asked the Commissioner to issue an advisory opinion regarding X's right to have access to certain data the Ramsey County Sheriff's Office maintains. IPAD requested additional information, which Mr. Dooley provided on November 7, 2008. </p><p> IPAD, on behalf of the Commissioner, wrote to Sheriff Bob Fletcher, in response to Mr. Dooley's request. The purposes of this letter, dated November 10, 2008, were to inform him of Mr. Dooley's request and to ask him to provide information or support for the Sheriff's Office's position. The Sheriff's Office did not submit a response. </p><p> A summary of the facts according to Mr. Dooley follows. In a letter dated October 3, 2008, Mr. Dooley, on behalf of X and with X's written consent, wrote to Sheriff Fletcher and requested access to all data of which X is the subject. Mr. Dooley also asked the Sheriff's Office, if it were to withhold any data about X, to confirm the existence and classification, and provide the "lawful basis for the classification," of any such data. </p><p> According to Mr. Dooley, "[o]n or about 14 October 2008, [Sheriff's Office staff] left a voice mail informing us that Ramsey County would not respond to [X's data] request. We have received no other communication from Ramsey County with respect to [X's] Data Practices Act request. Ten (10) business days have passed." </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Dooley's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Did the Ramsey County Sheriff's Office comply with Minnesota Statutes, Chapter 13, regarding an October 3, 2008, request for data? </p></td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Individual data subjects may gain access to all public and private data an entity maintains about them, but may not have access to confidential data about them. (See Minnesota Statutes, section 13.02, subdivisions 3, 8 and 12, and section 13.04.) </p><p> Pursuant to Minnesota Statutes, section 13.04, subdivision 3, when asked, a responsible authority or designee shall inform an individual data subject whether s/he is the subject of stored data on individuals, how the data are classified (public, private or confidential), and shall provide copies of the private or public data upon request. </p><p> When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. </p><p> On October 3, 2008, Mr. Dooley asked for access to any and all data the Sheriff's Office maintains about X. Pursuant to section 13.04, the Sheriff's Office was obligated to respond, within ten working days, and 1) inform X that it does not maintain any data about her/him; or 2) provide access to all public and private data about X, and/or 3) inform X that it maintains confidential data about her/him, and state the specific statutory section that so classifies those data. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Dooley raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> The Ramsey County Sheriff's Office did not comply with Minnesota Statutes, Chapter 13, regarding an October 3, 2008, request for data. </p></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: December 16, 2008 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2679432022-01-19T19:19:44Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266653" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-12-03T16:15:43ZDoes the Open Meeting Law apply to the Ultra High-Speed Broadband Task Force created by Chapter 212, Laws of Minnesota for 2008? If the Open Meeting Law applies is the Task Force required to meet in a public building or does the Task Force have the option of conducting its meetings in a private location that is made accessible to the public? Since the Task Force doesn’t have a primary office like many other public bodies (city councils, school boards, state agencies), how can the Task Force meet the requirements of Minnesota Statutes, section 13D.04, regarding Notice of Meetings and section 13D.01 regarding votes to be kept in a journal? Can a website be used to meet the meeting notice and journal requirements? The 23 member Task Force has nine members from Greater Minnesota for whom travel to meetings may, at times, be more onerous (winter weather conditions, scheduling conflicts dues to extended travel times). If a quorum of members is present at the meeting place, may videoconferencing be used to allow members who are not present to (1) listen the meeting; (2) provide comments; and/or (3) vote on motions/recommendations being considered at the meeting? May the Task Force create working groups of less than a quorum of the Task Force to meet outside of the public meetings to discuss distinct issue areas and to bring recommendations and draft language to the full Task Force at a public meeting for consideration and discussion?December 3, 2008; Ultra High-Speed Broadband Task Force36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <p><strong>Note:</strong> Minnesota Statutes, section 13D.04, subd. 6, was amended in 2014 to allow a State public body to post its schedule of regular meetings on its website, as an alternative to keeping it on file at the primary office. See Issue 3.</p> <h2>Facts and Procedural History:</h2> <p>On October 14, 2008, the Information Policy Analysis Division (IPAD) received a letter dated October 13, 2008 from Alberto Quintela, Jr., Staff Attorney, Minnesota Department of Commerce. In his letter, Mr. Quintela, on behalf of the Ultra High-Speed Broadband Task Force, asked the Commissioner to issue an advisory opinion on several Open Meeting Law issues. Mr. Quintela submitted the $200 fee on October 21, 2008.</p> <p>A summary of the facts as Mr. Quintela provided them is as follows. He wrote in his opinion request:</p> <p class="opinion_quote">The Minnesota Legislature created the Ultra High Speed Broadband Task Force in Chapter 212, Laws of Minnesota for 2008.</p> <p class="opinion_quote">The [Task Force] requests an opinion ... as to whether the Open Meeting Law applies...</p> <p class="opinion_quote">In the event that the Open Meeting Law is deemed to apply, the Task Force also has questions related to how [it] can meet some of the apparent requirements....</p> <p class="opinion_quote">The Legislature established a task force to gather data to put forth a comprehensive statewide ultra high-speed broadband goal. The Task Force consist of a total of 23 members, with seventeen members representing higher education, K-12, libraries, health care, counties, cities, citizens, labor, the commissioner of the Department of Commerce, the commissioner of the Department of Employment and Economic Development and a representative of the Office of Enterprise Technology and six members representing telephone companies, cable providers and wireless providers.</p> <p class="opinion_quote">The Task Force must deliver a report by November 1, 2009, to the Governor and the Legislature containing recommendations for the development of a comprehensive statewide plan designed to achieve a state ultra high-speed broadband goal that the Task Force considers appropriate.</p> <p class="opinion_quote">The report is to include recommendations for: broadband needs by 2015; policies and necessary actions; public/private cooperation; strategies; financing methods; financial incentives; security; vulnerability; redundancy; costs; economic development opportunities; and, benefits to educational, healthcare and government institutions and also community-based organizations.</p> <hr /> <h2>Issues:</h2> Based on Mr. Quintela's opinion request, the Commissioner agreed to address the following issues: <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Does the Open Meeting Law apply to the Ultra High-Speed Broadband Task Force created by Chapter 212, Laws of Minnesota for 2008?</li> <li>If the Open Meeting Law applies is the Task Force required to meet in a public building or does the Task Force have the option of conducting its meetings in a private location that is made accessible to the public?</li> <li>Since the Task Force doesn't have a primary office like many other public bodies (city councils, school boards, state agencies), how can the Task Force meet the requirements of Minnesota Statutes, section 13D.04, regarding Notice of Meetings and section 13D.01 regarding votes to be kept in a journal? Can a website be used to meet the meeting notice and journal requirements?</li> <li>The 23 member Task Force has nine members from Greater Minnesota for whom travel to meetings may, at times, be more onerous (winter weather conditions, scheduling conflicts dues to extended travel times). If a quorum of members is present at the meeting place, may videoconferencing be used to allow members who are not present to (1) listen the meeting; (2) provide comments; and/or (3) vote on motions/recommendations being considered at the meeting?</li> <li>May the Task Force create working groups of less than a quorum of the Task Force to meet outside of the public meetings to discuss distinct issue areas and to bring recommendations and draft language to the full Task Force at a public meeting for consideration and discussion?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p><em><strong>Issue 1:</strong> Does the Open Meeting Law apply to the Ultra High-Speed Broadband Task Force created by Chapter 212, Laws of Minnesota for 2008?</em></p> <p>Chapter 212, subdivision 1(a), states:</p> <p class="opinion_quote">The governor shall convene an Ultra High-Speed Broadband Task Force to make recommendations to the governor and the legislature regarding the creation of a state ultra high-speed broadband goal and a plan to implement that goal.</p> <p>Clause (b) of subdivision 1 lists the types of members who must comprise the Task Force.</p> <p>Clause (c) of subdivision 1 provides that the Governor shall appoint the Task Force members and designate one of the members to serve as chair.</p> <p>Clause (d) of subdivision 1 provides that the Department of Commerce shall provide logistical and administrative support to the Task Force.</p> <p>Clause (e) of subdivision 1 states:</p> <p class="opinion_quote">By November 1, 2009, the task force shall submit a report to the governor and the chairs and ranking minority members of the senate and house committees with primary jurisdiction over telecommunications policy containing recommendations, including possible legislation, for the development of a comprehensive statewide plan designed to achieve a state ultra high-speed broadband goal that the task force considers appropriate.</p> <p>Clause (e) goes on to list eight items that must be included in the report.</p> <p>Minnesota Statutes, section 13D.01, subdivision 1(a), discusses the types of state-related entities that are subject to the Open Meeting Law: "all meetings of a state agency, board, commission, or department must be open to the public" when public business will be transacted in the meetings.</p> <p>Here, the Legislature established the Task Force and gave the Governor the authority to appoint its membership. Although section 13D.01, subdivision 1, does not provide explicitly that meetings of state <em>task forces</em> must be open to the public, the Commissioner considers a task force to be akin to a board or commission. Given the scope of topics the Ultra High-Speed Broadband Task Force will be addressing, and the fact that it is to create a report containing recommendations "for the development of a comprehensive statewide plan designed to achieve a state ultra high-speed broadband goal," the Task Force will be transacting public business. For these reasons, the Commissioner concludes the Task Force is subject to the provisions of Chapter 13D.</p> <p><em><strong>Issue 2:</strong> If the Open Meeting Law applies is the Task Force required to meet in a public building or does the Task Force have the option of conducting its meetings in a private location that is made accessible to the public?</em></p> <p>Chapter 13D is silent on the issue of the location of public meetings. Clearly, though, meetings must be held in a location to which members of the public can easily gain access; if a body were to do otherwise, it would violate the spirit of the Open Meeting Law. The Commissioner is well aware that in many buildings, whether publicly or privately owned, persons entering are required to go though some type of security and, likely, must sign in. The Commissioner does not view this as a violation of Chapter 13D.</p> <p>The Task Force does, however, need to meet in the state of Minnesota. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267613" title="06-012" target="_blank">Advisory Opinion 06-012</a>, the Commissioner opined that bodies subject to Chapter 13D must hold their meetings within the territorial boundaries of the body. The Commissioner's opinion is based on a 1967 Minnesota Supreme Court case. (<em>Quast v. Knutson</em>, 150 N.W.2d 199, 200 (Minn. 1967).)</p> <p><em><strong>Issue 3:</strong> Since the Task Force doesn't have a primary office like many other public bodies (city councils, school boards, state agencies), how can the Task Force meet the requirements of Minnesota Statutes, section 13D.04, regarding Notice of Meetings and section 13D.01 regarding votes to be kept in a journal? Can a website be used to meet the meeting notice and journal requirements?</em></p> <p>Section 13D.04, subdivision 1, states, "A schedule of the regular meetings of a public body shall be kept on file at its primary offices."</p> <p>Mr. Quintela notes that the Task Force does not have a primary office. However, the Minnesota Department of Commerce, which is tasked with providing "logistical and administrative support" for the Task Force, does have a primary office. The Commissioner suggests keeping the Task Force's regular meeting schedule at the Department of Commerce. If the Task Force wishes to post its regular meeting schedule on its website, it may do so but not in lieu of maintaining a copy of the schedule at the primary office of the Department of Commerce for anyone who wishes to inspect or obtain a copy.</p> <p>Section 13D.01, subdivision 4, states, "The votes of the members ... must be recorded in a journal kept for that purpose." Again, if the Task Force wishes to post the members' votes on its website, it may do so, but this is not sufficient. The Task Force/Department of Commerce also must maintain a journal of the votes for anyone who wishes to inspect or obtain a copy.</p> <p><em><strong>Issue 4:</strong> The 23 member Task Force has nine members from Greater Minnesota for whom travel to meetings may, at times, be more onerous (winter weather conditions, scheduling conflicts dues to extended travel times). If a quorum of members is present at the meeting place, may videoconferencing be used to allow members who are not present to (1) listen the meeting; (2) provide comments; and/or (3) vote on motions/recommendations being considered at the meeting?</em></p> <p>Section 13D.02 discusses meetings conducted by interactive television. Subdivision 1 of section 13D.02, states, in part:</p> <p class="opinion_quote">A meeting may be conducted by interactive television so long as: <br /> (1) all members of the body participating in the meeting, wherever their physical location, can hear and see one another and can hear and see all discussion and testimony presented at any location at which at least one member is present; <br /> (2) members of the public present at the regular meeting location of the body can hear and see all discussion and testimony and all votes of members of the body; <br /> (3) at least one member of the body is physically present at the regular meeting location; and <br /> (4) each location at which a member of the body is present is open and accessible to the public.</p> <p>Thus, if the Task Force meets the requirements listed in section 13D.02, it may conduct meetings using interactive television (video conferencing).</p> <p><em><strong>Issue 5:</strong> May the Task Force create working groups of less than a quorum of the Task Force to meet outside of the public meetings to discuss distinct issue areas and to bring recommendations and draft language to the full Task Force at a public meeting for consideration and discussion?</em></p> <p>As the Commissioner discussed in Issue 1, the Task Force is subject to the requirements of Chapter 13D. There is nothing in Chapter 13D that prohibits the Task Force from creating or requires the Task Force to create work groups. Mr. Quintela's question seems to be whether a work group of the Task Force is subject to Chapter 13D if the membership of work group does not include a quorum of Task Force members. The Commissioner addressed a similar issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267269" title="07-025" target="_blank">Advisory Opinion 07-025</a>:</p> <p class="opinion_quote">A 1993 Minnesota Court of Appeals case addressed an issue similar to the one before the Commissioner. In <em>Sovereign v. Dunn</em>, 498 N.W.2d 62 (Minn.App. 1993), the Court found that a series of mediation sessions, in which less than a quorum of the Lake Elmo City Council members participated, were not a committee, subcommittee, board, department, or commission of the City of Lake Elmo for purposes of the Open Meeting Law....</p> <p class="opinion_quote">In the present situation, the Free Speech Working Group is not capable of exercising decision-making powers of the governing body.... In addition, because only two Council Members are part of the Work Group's membership, no quorum of the City Council exists. Based on the language in section 13D.01 and the Court of Appeals decision in Sovereign, the Commissioner does not believe that the Free Speech Working Group is subject to the requirements of Chapter 13D.</p> <p>Here, Mr. Quintela states that work groups would discuss distinct issue areas and bring recommendations and draft language to the full Task Force at public meetings for consideration and discussion. Similar to the facts in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267269" title="07-025" target="_blank">07-025</a>, any work group would not be capable of exercising decision-making powers of the Task Force. In addition, a work group's membership would not include a quorum of Task Force members. For these reasons, the Commissioner concludes a work group, such as Mr. Quintela describes, would not be subject to the requirements of Chapter 13D.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Quintela raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Ultra High-Speed Broadband Task Force created by Chapter 212, Laws of Minnesota for 2008 is subject to the Minnesota Statutes, Chapter 13D.</li> <li>Minnesota Statutes, Chapter 13D is silent on where bodies can or cannot hold meetings.</li> <li>Pursuant to Minnesota Statutes, section 13D.01, subdivision 4, the Task Force must maintain a journal of the record of votes taken by its members. Pursuant to Minnesota Statutes, section 13D.04, subdivision 1, the Task Force must maintain a copy of the schedule of its regular meetings.</li> <li>Minnesota Statutes, section 13D.02, sets forth the conditions under which the Task Force can conduct meetings by interactive television or video conferencing.</li> <li>A work group, such as Mr. Quintela describes, of the Task Force is not subject to the requirements of Minnesota Statutes, Chapter 13D.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 3, 2008</p> <hr /></div>2666532665722022-01-19T19:19:44Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267251" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-12-03T16:14:43ZDid the City of Duluth comply with Minnesota Statutes, Chapter 13, when it denied access to the following data: names, job titles and description, first and last date of employment, salary, pension and fringe benefit information for “employees whose last date of employment with the City was in August and September?” Did the City comply with Chapter 13 when it was asked to provide a written denial regarding the data described above?December 3, 2008; City of Duluth36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On September 12, 2008, the Information Policy Analysis Division (IPAD) received a letter from Brandon Stahl, a reporter for the <em>Duluth News Tribune.</em> In his letter, Mr. Stahl asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Duluth. IPAD requested clarification, which Mr. Stahl provided on October 30, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to Lisa Potswald, Chief Administrative Officer for the City of Duluth, in response to Mr. Stahl's request. The purposes of this letter, dated October 30, 2008, were to inform her of Mr. Stahl's request and to ask her to provide information or support for the City's position. M. Alison Lutterman, Deputy City Attorney, responded, in a letter dated November 21, 2008. Mr. Stahl and Ms. Lutterman enclosed copies of related correspondence.</p> <p>A summary of the written record follows. According to Ms. Lutterman, the City of Duluth publically announced its intention "to lay off seasonal, temporary and permanent employees. Those layoffs occurred in August and September of 2008." Ms. Lutterman described a subsequent telephone call, in which she and Mr. Stahl discussed "whether the City, if requested, would release the names of employees who had been laid off." According to Ms. Lutterman, she "advised [Mr.] Stahl that if the City received such a request that it would most likely not disclose the names because the reasons for the termination of employment is not public data unless the termination was the result of final disciplinary action."</p> <p>In an email dated September 19, 2008, Mr. Stahl asked Ms. Lutterman for "a written message declining my data request seeking information on employees whose last date of employment was in August and September."</p> <p>That day Ms. Lutterman responded by email: "[w]hen do [sic] you make such a request? We talked about you making such a request and I advised you how I would respond if you made such a request; however, I don't recall that you ever officially made such a request."</p> <p>Mr. Stahl responded in a September 24 email, in which he asked for the following: names, job titles and description, first and last date of employment, salary, pension and fringe benefit information for "all employees whose last date with the City was in August and September."</p> <p>Ms. Lutterman and Mr. Stahl continued to exchange emails. Of relevance here are the following:</p> <p class="opinion_quote">- September 24, 2008: Ms. Lutterman wrote, "[w]e will also be evaluating whether any of the data requested is classified as other than public and will respond further with a response related to that issue."</p> <p class="opinion_quote">- October 6, 2008, Ms. Lutterman wrote, "[t]his updates you on the status of your data request ...[b]ecause the context of your question would reveal the identity of employees who have been laid off, the names of employees is not public. This is so because the reason why employment ends is not public data pursuant to Minn. Stat. 13.43...."</p> <p class="opinion_quote">-October 8, 2008: Mr. Stahl wrote, "[a]lso, in regards to my previous data request and wanting to get a written denial about not providing names of employees, will you be able to do that soon?"</p> <p class="opinion_quote">-October 29, 2008: Ms. Lutterman wrote, "[p]lease be further advised that because the context of your question would disclose the reason for departure by those employees who were laid off, and because the reason for the termination is not public, unless the termination was the result of final discipline, the names of laid off employees are not public data and will not be released. Minn. Stat section13.42 [sic], see also, Commissioner's Opinion 08-004."</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Stahl's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the City of Duluth comply with Minnesota Statutes, Chapter 13, when it denied access to the following data: names, job titles and description, first and last date of employment, salary, pension and fringe benefit information for "employees whose last date of employment with the City was in August and September?"</li> <li>Did the City comply with Chapter 13 when it was asked to provide a written denial regarding the data described above?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p><em>Issue 1: </em>Did the City of Duluth comply with Minnesota Statutes, Chapter 13, when it denied access to the following data: names, job titles and description, first and last date of employment, salary, pension and fringe benefit information for "employees whose last date of employment with the City was in August and September?"</p> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>Among the data on current and former employees that are classified as public under section 13.43, subdivision 2(a), are name, job title and description, date of first and last employment, actual gross salary, actual gross pension and value and nature of employer paid fringe benefits. Under section 13.43, the reason a former employee left government employment (absent final disciplinary action) is not public.</p> <p>In her comments to the Commissioner, Ms. Lutterman wrote:</p> <p class="opinion_quote">The City does not dispute that normally the names of former employees are public data [citation omitted.] However, the names of the employees in the context of the request is [sic] not public. This is so because by identifying the names of these employees, the City is providing more data than just a name. The City is also providing the reason for the employee's termination ... [which] is not public unless the termination is a result of final disciplinary action, in which case the data would be public. [Citation omitted.]</p> <p>Ms. Lutterman states that in a telephone conversation, she and Mr. Stahl discussed "whether the City, if requested, would release the names of employees who had been laid off." From the record, it appears that Mr. Stahl thought he had asked for access to data in that conversation; Ms. Lutterman did not think so. However, Mr. Stahl did make a written request, in a September 24 email, for the names and certain other public data about former employees whose last date of employment with the City was in August or September, 2008. He did not ask for data specifically about former employees who had been laid off during that time. The City's response to that request is what is at issue here.</p> <p>As Ms. Lutterman noted, the Commissioner has addressed the importance context can play with respect to the proper classification of data. If Mr. Stahl had asked for data on employees whom the City had laid-off, the City would properly have denied him access. However, that is not what he asked for.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266860" title="08-004" target="_blank">Advisory Opinion 08-004</a>, which also involved a data request Mr. Stahl made to the City, the Commissioner opined:</p> <p class="opinion_quote"><em>The reason a former employee left City employment (absent final disciplinary action) is not public. Mr. Stahl did not ask for otherwise public data on former employees; he asked for identifying data about retirees and their dependents. The City would have improperly released private data had it complied with his request as stated. However, if Mr. Stahl, or anyone, were to ask for the names, value and nature of fringe benefits, and any other public data on former employees, the City could provide access to those data.</em> [Emphasis omitted.]</p> <p>The City should provide Mr. Stahl with access to the data he requested in his September 24, 2008, email.</p> <p><em>Issue 2: </em>Did the City comply with Chapter 13 when it was asked to provide a written denial regarding the data described above?</p> <p>Pursuant to section 13.03, subdivision 3(f), when the responsible authority or designee determines that the requested data are not accessible to the requestor, s/he shall inform the requestor of that determination either orally at the time of the request, or in writing as soon after that time as possible, and shall cite the specific legal basis for the denial. Further, if asked, the responsible authority/designee shall certify the denial in writing.</p> <p>Ms. Lutterman wrote to Mr. Stahl on October 6 and 29, 2008, both times citing section 13.43 as the basis for the City's denying him access to the employees' names. Thus, the City satisfied its obligation to set forth the basis for its denial in writing.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Stahl raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The City of Duluth did not comply with Minnesota Statutes, Chapter 13, when it denied access to the following data: names, job titles and description, first and last date of employment, salary, pension and fringe benefit information for "employees whose last date of employment with the City was in August and September."</li> </ol> <ol start="2" type="1"> <li>The City did comply with Chapter 13 when it was asked to provide a written denial regarding the data described above.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 3, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2672512668732022-01-19T19:19:44Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267234" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-11-25T16:14:43ZDid the City of Hibbing comply with Minnesota Statutes, Chapter 13, in denying a request for a copy of “the complete report on an investigation of possible perjury on the part of Hibbing police officers who testified at a misdemeanor trial in Hibbing in June 2008?”November 25, 2008; City of Hibbing36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On September 26, 2008, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Mike Jennings, of the <em>Hibbing Daily Tribune</em>. In his letter, Mr. Jennings asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data the City of Hibbing maintains. IPAD requested clarification, which Mr. Jennings provided on October 13, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to Brian J. Redshaw, City Administrator, in response to Mr. Jennings's request. The purposes of this letter, dated October 16, 2008, were to inform him of Mr. Jennings's request and to ask him to provide information or support for the City's position. Richard K. Sellman, City Attorney, responded, in a letter dated November 13, 2008.</p> <p>A summary of the facts follows. In a letter dated September 11, 2008, Mr. Jennings wrote to Mr. Redshaw and requested a copy of "the file for case number 08-168012, in which Anoka County Sheriff's Detective Mike Lapham investigated police testimony at the misdemeanor trial of Anthony Sarago in St. Louis County District Court in Hibbing in June 2008. If information is excluded from the document, please inform me of the provisions of the Data Practices Act that authorize the exclusion."</p> <p>On September 18, 2008, Mr. Sellman wrote to Mr. Jennings: "[t]he information you request is being used for an internal investigation for possible disciplinary action(s). The data you request is therefore private data under Minnesota Statute 13.43."</p> <p>On September 22, 2008, Mr. Jennings replied:</p> <p class="opinion_quote">It has repeatedly been made clear to us that the investigation of Hibbing police officers' testimony in a June 17, 2008, trial dealt narrowly with the question of possible criminal conduct. After arranging in July for an independent investigation of that testimony, Hibbing Police Chief Barbara Mitchell told us it was customary to ask another police agency to investigate when complaints against officers 'might be criminal in nature.' Based on our further inquiries into the conduct of the investigation, we believe that [the investigating agency] limited [its] inquiry to the question of possible perjury in the June 17 trial. [The] report, then we assume, maintains that same close focus, and should thus be regarded exclusively as criminal investigative data, regardless of whether the report is later used in other contexts, such as an internal affairs investigation.</p> <p class="opinion_quote">Minnesota Statute 13.82, Subd. 7, provides that criminal investigative data shall remain confidential or protected nonpublic while the investigation is active. It also provides that an investigation becomes inactive upon the occurrence of any of three events. One of those events - a decision by the prosecutorial authority not to pursue the case - occurred on August 29, 2008, when . . . [that authority found] that the investigative report provided 'insufficient evidence to charge anyone in connection with this matter.'</p> <p>In his comments to the Commissioner, Mr. Sellman wrote:</p> <p class="opinion_quote">It is clear under Minnesota Statute, 13.82 that, with a couple of exceptions that do not apply here, once a criminal investigation is completed and the charging decision made, the investigative report is public data under the statute.</p> <p class="opinion_quote">It is also clear under Minnesota Statute 13.43 . . . that information used to investigate/evaluate an internal matter is personnel data and is private data until and unless the person is disciplined.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Jenning's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the City of Hibbing comply with Minnesota Statutes, Chapter 13, in denying a request for a copy of "the complete report on an investigation of possible perjury on the part of Hibbing police officers who testified at a misdemeanor trial in Hibbing in June 2008?"</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events.</p> <p>There is no dispute that the data in question were created as part of a criminal investigation. Under section 13.82, subdivision 7, data collected or created by a law enforcement agency in order to prepare a case against a person are confidential or protected nonpublic while the investigation is active.</p> <p>One of three occurrences changes the status of a criminal investigation from active to inactive; one of those is the decision by the agency or appropriate prosecutorial authority not to pursue the case. Once the investigation is inactive, the data are public, unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 17. (According to Mr. Sellman, neither of those exceptions applies to the data in the report.)</p> <p>Mr. Sellman stated that the data in question are properly classified as personnel data under section 13.43, because they are now being used in a disciplinary investigation. That section classifies certain personnel data as public, and all other personnel data as private. If the entity takes final disciplinary action, the specific reasons for and data that document the basis of the final disciplinary action are public. If the entity does not take final disciplinary action, related data remain private. (See section 13.43, subdivision 2.)</p> <p>Mr. Sellman stated that the two provisions under which the data in question might be classified, namely section 13.82 and section 13.43, appear to be in conflict, and that section 13.43 is more specific and should therefore control.</p> <p>Minnesota Statutes, Chapter 645, provides guidance on statutory interpretation. Section 645.17 discusses presumptions in ascertaining legislative intent. Section 645.26 discusses irreconcilable provisions. Subdivision 1 of section 645.26 states, in part, "[w]hen a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both." Section 645.26, subdivision 1, further provides that if two provisions are irreconcilable, "the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail." The Legislature adopted section 13.82, subdivision 7, after adopting section 13.43, subdivision 4.</p> <p>The Commissioner sees the logic in Mr. Sellman's position; however, that position is also problematic. Section 13.82 temporarily classifies active investigative data as not public; once any of three events occurs, data that had been protected become public when the investigation is no longer active. However, private personnel data don't become public unless the entity takes final disciplinary action against an employee. If an entity could protect otherwise public inactive criminal investigative data as private personnel data, the Legislature's intent, i.e., that protected criminal investigative data become public, could be thwarted (in a situation in which the entity does not take final disciplinary action.)</p> <p>Mr. Jennings asked for data that were created because the City police department undertook (through an agreement with Anoka County) an investigation of possible crimes. That investigation was a criminal matter, not a personnel investigation. Mr. Jennings did not ask for access to personnel data. He asked for inactive criminal investigative data, which are public under section 13.82, assuming neither of the exceptions noted above applies.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Jennings raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The City of Hibbing did not comply with Minnesota Statutes, Chapter 13, in denying a request for a copy of "the complete report on an investigation of possible perjury on the part of Hibbing police officers who testified at a misdemeanor trial in Hibbing in June 2008."</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 25, 2008</p> <hr /> </td> </tr> </tbody> </table> </div>2672342668312022-01-19T19:19:43Z266258515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267830" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-10-23T15:14:43ZPursuant to Minnesota Statutes, Chapters 13 and 175A, what is the classification of the following data: the written decisions of the State of Minnesota Workers’ Compensation Court of Appeals?October 23, 2008; Minnesota Workers' Compensation Court of Appeals36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On September 3, 2008, the Information Policy Analysis Division (IPAD) received a letter dated August 26, 2008, from Thomas Johnson, Chief Judge of the State of Minnesota Workers' Compensation Court of Appeals (WCCA). In his letter, Chief Judge Johnson asked the Commissioner to issue an advisory opinion regarding the classification of certain data the WCCA maintains.</p> <p>A summary of the facts as Chief Judge Johnson provided is as follows. In his opinion request, Chief Judge Johnson wrote:</p> <p class="opinion_quote">The [WCCA] is seeking an advisory opinion. . .regarding classification of the written decisions of the WCCA.</p> <p class="opinion_quote">The WCCA was contacted by an individual who is the subject of a WCCA decision. . .The decision is posted on the WCCA web site. . .[The data subject] requested that all files and documentation relating to her workers' compensation claim be removed from the internet because the contents include private identifiers and medical information. . . .</p> <p class="opinion_quote">The WCCA is not a judicial court. It is an executive branch court created by the legislature. . ..</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Chief Judge Johnson's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapters 13 and 175A, what is the classification of the following data: the written decisions of the State of Minnesota Workers' Compensation Court of Appeals?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>The WCCA is a state agency for purposes of Minnesota Statutes, Chapter 13. Therefore, the data WCCA collects and maintains are subject to the provisions of Chapter 13.</p> <p>Pursuant to Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 175A.06, states, "The hearings of the [WCCA] shall be open to the public and may be adjourned from time to time. All the proceedings of the court shall be shown on its records, which shall be public records."</p> <p>In his opinion request, Chief Judge Johnson wrote:</p> <p class="opinion_quote">Adjudication of workers' compensation claims follows the judicial model of decision-making. Contested claims are tried in administrative proceedings in a manner similar to civil actions in a judicial court. Each disputed claim is a case. . . .Typical issues include whether the employee's claimed injury arose out of and in the course of employment, whether there is, in fact, a work-related injury or disease, the nature and/or extent of the work injury or occupational disease, the reasonableness and necessity of medical treatment. . .Thus the vast majority of the evidence submitted at trial are records, reports, and other information pertaining to the employee's employment and earnings, vocational rehabilitation, and medical history and treatment.</p> <p class="opinion_quote">Any party has the right to appeal a compensation judge's decision (Findings and Order) to the WCCA. On appeal, the WCCA's review is limited to the trial record. . .The record consists of a transcript of the testimony taken at the hearing before a compensation judge and the documentary and other records submitted into evidence. The parties submit written briefs to the WCCA presenting argument about how the appeal should be decided, citing case law precedent, and in a limited number of cases the WCCA hears oral argument. The WCCA issues a written decision describing the facts relevant to the case, analyzing the law applicable to the claim, and stating the court's holding in the case. Based on the evidentiary record, the decision includes information about the claimant's medical condition, history and treatment, employment, and vocational rehabilitation, and medical history and treatment.</p> <p class="opinion_quote">The Minnesota legislature delegated to the WCCA exclusive authority to act as the appellate court in workers' compensation cases. As an appellate court, the WCCA's decisions are legal precedent for subsequent cases. That is, compensation judges and others involved in resolving and determining workers' compensation claims are bound by the legal analysis and reasoning of the court in previously issued decisions, as is the WCCA in making subsequent decisions on appeal. . . . <br /></p> <p class="opinion_quote">In recent years, following the lead of the Court of Appeals and Supreme Court. . .the WCCA has made its decisions remotely accessible via the WCCA web site. . .The only data the WCCA makes available to the public on the web is the court's written decisions.</p> <p class="opinion_quote">[Minnesota Statutes, Chapter 13] states that government data are public unless otherwise classified. Minnesota Statutes section 175A.06 states that the hearings and proceedings of the WCAA are "public records." The fundamental, physical embodiment of the court's "proceedings" are the written decisions issued by the WCCA. . . .</p> <p class="opinion_quote">With respect to personal information, the employee's full name is listed in the caption of the case and all or part of the name may be repeated in the decision. However, the WCCA does not disclose Social Security numbers and is careful not to include security information such as employer identification numbers, a party's street address, telephone numbers, financial account or credit card numbers, and the like. . . . <br /></p> <p>Given the language in section 175A.06, it is the Commissioner's opinion that the written decisions of the WCCA are public data. In addition, as Chief Judge Johnson points out, the WCCA acts as the appellate court in workers' compensation cases and its decisions are legal precedent for subsequent cases. Significant disruption in the legal process could occur if the WCCA decisions were not public.</p> <p>It is important to note that public data located on a website are more easily accessible to more people than public data located in a file cabinet in the office of a government entity. When most government data were maintained in paper form, the number of people getting access to public data was much smaller than it is today. WCCA's decision to post its decisions on a website means that detailed medical information about individuals is easily accessible to more people.</p> <p>For most government entities, there is a legitimate business need to post data on websites. That said, WCCA has the option of removing the names of the data subjects in the decisions it posts on the internet. The names remain public data pursuant to Chapter 13 so if anyone were to make a data request, the WCCA would need to provide the names to the requestor. Clearly, given the continued push for greater privacy protection of medical records, the issues raised in this opinion are ones the Minnesota Legislature may want to address.</p> <p>The Commissioner notes she did consider that some of the data subjects in the WCCA's decisions are government employees whose data are classified under Minnesota Statutes, section 13.43. Generally, medical data about government employees are private data. However, in this case, given that section 175A.06 is more specific than section 13.43, and that section 175A.06 was enacted after the relevant provisions in section 13.43, the Commissioner concludes that data about government employees in the WCCA decisions are public. (Minnesota Statutes, section 645.26, subdivision 1, irreconcilable provisions - particular controls general.) In addition, it does not seem reasonable the Legislature intended data in certain written decisions to be protected (data relating to an employee of a government entity) and data in other written decisions to be public (data relating to an employee of a non-government entity). (Minnesota Statutes, section 645.16, legislative intent controls.)</p> <p>Finally, as Chief Judge Johnson noted, Social Security numbers are private pursuant to Minnesota Statutes, section 13.355, and should be redacted from public documents. In addition, data such as financial account or credit card numbers are not public pursuant to Minnesota Statutes, section 13.37 (security information).</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Chief Judge Johnson raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapters 13 and 175A, the written decisions of the State of Minnesota Workers' Compensation Court of Appeals are public.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 23, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2678302670812670452024-05-16T16:29:56Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267739" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-10-08T15:14:43ZDid the Carver County Sheriff’s Office comply with Minnesota Statutes, Chapter 13, in denying a request for a copy of a booking photograph of a 16 year-old?October 8, 2008; Carver County Sheriff36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><em>Note: the Commissioner wishes to clarify an issue brought to her attention. The "record" the Commissioner refers to in 08-030 is the record discussed in section 260B.171, subdivision 5. This section discusses peace officers records, not court records. The Commissioner's opinion in 08-030 is that if the proceedings involving the juvenile are public under Minnesota Statutes, section 260B.163, subdivision 1, the peace officer records, including the booking photo, are not classified pursuant to section 260B.171, subdivision 5, but are classified pursuant to the general presumption in Chapter 13 - public unless otherwise classified. Pursuant to section 13.82, subdivision 26, booking photographs are public. Thus, when a juvenile has committed an offense for which the proceedings are public pursuant to section 260B.163, subdivision 1, law enforcement and detention records about that juvenile no longer are specially protected and are classified as if the juvenile were an adult.</em></p> <h2>Facts and Procedural History: <br /></h2> <p>On August 22, 2008, the Information Policy Analysis Division (IPAD) received a letter dated August 19, 2008, from Mark Anfinson, an attorney representing the <em>Chaska Herald</em>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the Carver County Sheriff's Office.</p> <p>IPAD, on behalf of the Commissioner, wrote to Byron Olson, Carver County Sheriff, in response to Mr. Anfinson's request. The purposes of this letter, dated August 29, 2008, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for his position. On September 18, 2008, IPAD received a response, dated same, from Thomas Haines, Assistant Carver County Attorney.</p> <p>A summary of the facts as Mr. Anfinson provided them is as follows. Mr. Anfinson wrote in his opinion request:</p> <p class="opinion_quote">Recently, a 16-year-old Carver County resident was detained by the Carver County Sheriff's office after allegedly committing a serious assault, for which he was charged. The assault charge alone would constitute a felony-level offense, but the victim subsequently died, and as we understand it, more serious charges are therefore pending. The newspaper has asked for a copy of the booking photograph (mug shot) of the juvenile that was obtained when the juvenile was taken into custody, citing Minn. Stat. section13.82, subd. 26.</p> <p class="opinion_quote">However, the county attorney takes the position that the photograph is not publicly accessiblehellip;.The Carver County attorney's office has cited language found in section260.171, subd. 5(c) [sic], which authorizes law enforcement agencies to obtain booking photographs of juveniles, and then restricts the ways in which the photographs may be "used."</p> <p class="opinion_quote">We disagree with this interpretationhellip;</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Carver County Sheriff's Office comply with Minnesota Statutes, Chapter 13, in denying a request for a copy of a booking photograph of a 16 year-old?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Pursuant to section 13.82, subdivision 26, booking photographs are public.</p> <p>While section 13.82 applies to most law enforcement data, peace officer records about children who are or may be delinquent, or who may be engaged in criminal acts are classified pursuant to Minnesota Statutes, section 260B.171, subdivision 5. Generally, section 260B.171, subdivision 5(a), classifies those data as private. However, records relating to an offense where proceedings are open to the public under section 260B.163, subdivision 1, are, based on the general presumption, classified pursuant to section 13.82.</p> <p>The Commissioner has few details about the facts of this particular situation. She knows only what Mr. Anfinson wrote in his opinion request - that the Carver County Sheriff's office detained a 16-year-old who allegedly committed a serious assault. Mr. Anfinson stated, "The assault charge alone would constitute a felony-level offense, but the victim subsequently died, and, as we understand it, more serious charges are therefore pending."</p> <p>Based on the relevant statutory sections cited above, the Commissioner's conclusion is as follows. The data subject is a minor child. Because s/he may be delinquent or may be engaged in criminal acts, the data about him/her are classified pursuant to section 260B.171. However, the next part of the analysis is dependent upon facts the Commissioner does not have. Pursuant to section 260B.171, subdivision 5(a), if the proceedings in this situation are open to the public and the photograph is part of that record, those data are not classified pursuant to section 260B.171, subdivision 5, but, pursuant to the general presumption, are classified pursuant to section 13.82. Section 13.82, subdivision 26, provides that booking photographs are public.</p> <p>If the proceedings in this situation are not open to the public, the photograph is classified pursuant to section 260B.171, subdivision 5, and is private.</p> <p>In his comments to the Commissioner, Mr. Haines cited language in section 260B.171, subdivision 5(c), which relates to photographs taken of a child who has been taken into immediate custody in accordance with the laws relating to arrests:</p> <p class="opinion_quote">A photograph may be taken of a child taken into custodyhellip;provided that the photograph must be destroyed when the child reaches the age of 19 yearshellip;.Photographs of juveniles authorized by this paragraph may be used only for institution management purposes, case supervision by parole agents, and to assist law enforcement agencies to apprehend juvenile offenders. The commissioner shall maintain photographs of juveniles in the same manner as juvenile court records and names under this section.</p> <p>This clause does not change the private classification of a photograph but does clarify that photographs of minor children who are taken into immediate custody may be used only for the purposes specified.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>If the proceedings in this situation are not open to the public, the booking photograph is private data pursuant to Minnesota Statutes, section 260B.171, subdivision 5, and the Carver County Sheriff's office appropriately withheld the photograph.</p> <p>If the proceedings in this situation are open to the public and the booking photograph is part of the record, the photograph is public pursuant to Minnesota Statutes, section 13.82, subdivision 26.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 8, 2008</p> <hr /> </td> </tr> </tbody> </table> </div>2677392671922663022022-01-19T19:19:43Z266258266775266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266866" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-09-29T15:16:43ZDid School District 846, Breckenridge, comply with Minnesota Statutes, Chapter 13, in responding to a request for the “audio recording that was recorded at the public [District] board meeting held on September 10, 2007?”September 29, 2008; School District 846 (Breckenridge)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On August 14, 2008, the Information Policy Analysis Division (IPAD) received an email from Bruce Fronning. In his email, Mr. Fronning asked the Commissioner to issue an advisory opinion regarding his access to certain data from School District 846, Breckenridge.</p> <p>IPAD, on behalf of the Commissioner, wrote to Warren Schmidt, Superintendent of the District, in response to Mr. Fronning's request. The purposes of this letter, dated August 20, 2008, were to inform him of Mr. Fronning's request and to ask him to provide information or support for the District's position. On September 8, 2008, IPAD received a response, dated September 4, 2008, from Kristi Hastings, an attorney representing the District.</p> <p>A summary of the facts as Mr. Fronning provided them is as follows. In April 2008, Mr. Fronning wrote to the District, "As a citizen of the district and member of the public, I request a copy of the ;audio recording that was recorded at the public Independent School District #846 board meeting held on September 10, 2007."</p> <p>Ms. Hastings responded in a letter dated June 2008:</p> <p class="opinion_quote">My understanding of this audio recording is that it was made by Superintendent East with his personal recorder. A request has been made of Mr. East to deliver a copy of this recording to the district. To date, Mr. East has declined to do so. Therefore, the district is not in possession of the data which you seek and cannot provide it to you. You will need to take this matter up directly with Mr. East and his legal counsel</p> <p>In his opinion request, Mr. Fronning wrote:</p> <p class="opinion_quote">In August 2007, the Interim Superintendent and the Chair has [sic] a discussion about the upcoming teachers [sic] union contract negotiations and the state requirement of data recording of any strategy meetings and the preservation of those recordings. In that discussion the Interim indicated the District did not have a data recorder and that he would look into getting one for the District.</p> <p class="opinion_quote">At the September 2007 District Meeting he brought out a data recorder and indicated that he was going to record the next few minutes of the meeting in case there is ever a question in regard to what took place in the meeting and as to what was said. He also reference [sic] it would be available should a copy be requested. He then proceeded to record a portion of the meeting.</p> <p class="opinion_quote">Some time after the meeting a copy of the recording was requested. He than [sic] informed the party that the recording was done on his private data recorder and he would not release it to the requested party.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Fronning's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Did School District 846, Breckenridge, comply with Minnesota Statutes, Chapter 13, in responding to a request for the "audio recording that was recorded at the public [District] board meeting held on September 10, 2007?"</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.</p> <p>Thus, any data an entity or its governing board creates, maintains, etc., are government data. One exception to this general rule is if an employee or governing board member creates, maintains, etc., data that are <em>personal</em>. That is, data an employee or official did not create in his/her government capacity and data the purpose of which are not related to the operations of government. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267417" title="05-017" target="_blank">Advisory Opinion 05-017</a>).</p> <p>Whether government data are public or not public depends upon how the data are classified in Chapter 13, other Minnesota laws, or federal law.</p> <p>In her comments to the Commissioner, Ms. Hastings wrote:</p> <p class="opinion_quote">I represent the Breckenridge School District, No. 846. Board member Bruce Fronning, in his capacity as a member of the public, has requested an advisory opinion</p> <p class="opinion_quote">In September of 2007, the District's Superintendent was Greg East.</p> <p class="opinion_quote">On September 10, 2007, then Superintendent East, was questioned by board member Kathy Radig about a particularly contentious issue. Mr. East stood up, took a recording device out of his pocket and proceeded to leave the stage where school officials sit during meetings and, instead, took a seat in the audience. He then announced his belief that the board was acting unethically. After Mr. East's diatribe, he turned off his recorder, returned to the stage with the Board, and the meeting continued.</p> <p class="opinion_quote">[In response to a previous request for the recording, Mr. East] refused stating that the recorder he used at the meeting was his own personal digital recorder and that the recording was done for personal reasons (presumably related to his allegations of future litigation). There can be no dispute that the District does not regularly tape record their board meetings. A request for the recording was made by the District of Mr. East and his attorney, but they refused to provide the District with a copy of the recording. <em>At no time, up to and including the present time</em>, has the recording ever come into the possession of the District. The members of the School Board had no advance warning that Mr. East would record a portion of the September meeting. [Emphasis provided.]</p> <p class="opinion_quote">Mr. East is no longer employed by the Distric There is no evidence to suggest that the digital tape recording used by Mr. East at the September meeting belonged to the District. It certainly was not left at the District when Mr. East left his position. Mr. Fronning's letter suggests that Mr. East was going to purchase a recorder for the District, but there is nothing in the minutes nor any other written documents or expenditures at the District that would prove the recorder used at the meetings was anything but what Mr. East claimed, his own.</p> <p class="opinion_quote">The District did not "collect," "receive," "maintain," nor "disseminate" the tape at issue. It was in the sole possession of a District employee who refused to turn the data over to the public entity.</p> <p>The Commissioner has the following comments. The fact that Mr. East used his own digital recorder does not, on its face, mean the recording is not government data. (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267740" title="07-006" target="_blank">Advisory Opinion 07-006</a>.) There often are situations in which government employees use their own equipment (cars, computers, cell phones, pagers, etc.) for work related purposes. It is not reasonable to conclude that in those situations, related data could not be considered government data.</p> <p>The most important factor in determining whether the data are government data is if Mr. East was acting in his capacity as the District's superintendent when he made the recording. Although according to Ms. Hastings, Mr. East stated the recording was done for personal reasons, the Commissioner was not presented with any facts suggesting Mr. East made any kind of formal announcement that he was taking off his work hat and putting on his citizen hat. Presumably, if he had done that, his time book should show that he had taken vacation time.</p> <p>In addition, Ms. Hastings provided a copy of a newspaper article about the September 2007 board meeting. The quotes the reporter attributes to Mr. East make it apparent the Mr. East was acting as the superintendent:</p> <p class="opinion_quote">"I am going record what I have to say," he said.</p> <p class="opinion_quote">"I have thought long and hard about whether or not I would ever do this," he said. "Certain things have transpired that have left me no choice."</p> <p class="opinion_quote">"I am tired of handling you with kids [sic] gloves," East said. "Don't lob surprises at me and don't lay bombs at my doorstep."</p> <p>For these reasons, the Commissioner concludes that Mr. East was acting as the District's superintendent when he made the recording and, therefore, that the recording is government data. Given that the meeting was open and no one provided arguments as to why the data in the recording are not public, the Commissioner concludes the recording is public government data.</p> <p>Because the data in the recording are public government data, the District has an obligation to make those data available for members of the public to access. Ms. Hastings states that the District never had possession of the recording and that it attempted to obtain the data from Mr. East. As the Commissioner discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267794" title="95-088" target="_blank">Advisory Opinion 95-008:</a></p> <p class="opinion_quote">Each government entity is responsible for assuring that data maintained away from the primary workplace are handled in compliance with Chapter 13. While neither Chapter 13 nor Rules Chapter 1205 provides any specific guidelines for this process, Section 13.05, subdivision 5, does address the issue in an indirect fashion. The language charges the government entity's responsible authority with establishing procedures to assure that all data on individuals are accurate, complete, and current for the purposes for which the data were collected and also with establishing appropriate safeguards for all records containing data on individuals.</p> <p>The length of time the District is required to keep the recording depends upon whether or not it is an official record. Here, the District is in the best position to make that decision; the Commissioner neither has sufficient information nor knowledge of the issues that gave rise to Mr. East taping a portion of the meeting.</p> <p>If the data in the recording are an official record, they must be kept for the time specified in the District's retention schedule. If the data in the recording are not official record, the District is not required to maintain them for any specified period of time. (Minnesota Statutes, sections 138.17 and 138.225.) However, regardless of whether the data are official record, if they existed at the time Mr. Fronning made his request, the District should have provided him with a copy. Government entities should adopt procedures or policies that provide for the return of government data from soon-to-be former employees, contractors, or elected officials.</p> <p>If the data in the recording still exist, the District promptly should provide a copy to Mr. Fronning in response to his request. If the recording no longer exists, the District needs to advise Mr. Fronning that it has no data responsive to his request.</p> <p>The following note is in order. If the data in the recording still exist, and Mr. East refuses to give the recording to the District, it is not appropriate that Mr. Fronning should bear the cost of going to court to get access to the data. This is the District's responsibility. However, government entities do not seem to have an adequate civil remedy under Chapter 13 to go after former employees and others who refuse to hand over government data. The Commissioner strongly encourages the Legislature to make changes to Minnesota Statutes, section 13.08, so entities are in a better position to seek data from any person over whom the entities no longer have any leverage.</p> <p>The Commissioner also encourages the District to contact their appropriate prosecuting authority to initiate misdemeanor charges against Mr. East under Minnesota Statutes, section 13.09, should he continue to refuse to produce the data Mr. Fronning requested.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Fronning raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The District did not comply with Minnesota Statutes, Chapter 13, in responding to Mr. Fronning's request. Because the superintendent of School District 846 was acting in his official capacity when he recorded a portion of the September 10, 2007, board meeting, the data in the audio recording are government data. The data are classified as public.</p> <p>If the data existed when Mr. Fronning made his data request, the District should have provided him with a copy. If the data still exist, the District promptly should provide him with a copy. If the data no longer exist, the District promptly should so inform Mr. Fronning. If the data no longer exist and they are an official record, and were destroyed prior to time stated in the District's retention schedule, the District is not in compliance with Minnesota Statutes, section 138.17.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 29, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2668662666672022-01-19T19:19:42Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266926" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-09-29T15:15:43ZDid the University of Minnesota comply with Minnesota Statutes, Chapter 13, in responding to a data request for “annual athletically related income reports from head coaches Tubby Smith, Tim Brewster, J. Robinson and Don Lucia for the past 10 years?”September 29, 2008; University of Minnesota36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On August 11, 2008, the Information Policy Analysis Division (IPAD) received a letter dated August 6, 2008, from Vadim Lavrusik, Co-Publisher and Editor in Chief, of <em>The Minnesota Daily</em>. In his letter, Mr. Lavrusik asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the University of Minnesota.</p> <p>IPAD, on behalf of the Commissioner, wrote to Tracy Smith, Associate General Counsel of the University, in response to Mr. Lavrusik's request. The purposes of this letter, dated August 18, 2008, were to inform her of Mr. Lavrusik's request and to ask her to provide information or support for the University's position. On September 5, 2008, IPAD received a response, dated same, from Ms. Smith.</p> <p>A summary of the facts as provided by Mr. Lavrusik is as follows. On June 26, 2008, newspaper staff requested data:</p> <p class="opinion_quote">I request annual athletically related income reports from head coaches Tubby Smith, Tim Brewster, J. Robinson and Don Lucia for the past 10 years, where applicable, or all data available if the coach has been here for a shorter time than that.</p> <p>The University responded by stating, "Their outside income reporting is considered private personnel data under M.S. 13.43 and cannot be released."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Lavrusik's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the University of Minnesota comply with Minnesota Statutes, Chapter 13, in responding to a data request for "annual athletically related income reports from head coaches Tubby Smith, Tim Brewster, J. Robinson and Don Lucia for the past 10 years?"</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>Pursuant to section 13.43, subdivision 2(a)(1), the following data related to an employee's salary are public: "actual gross salary; salary range; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary."</p> <p>In her comments to the Commissioner, Ms. Smith wrote:</p> <p class="opinion_quote">The Board of Regents of the University of Minnesota maintains policies requiring covered University employees, including head coaches, to report their outside activities in order to identify and manage potential individual conflicts of interest.</p> <p class="opinion_quote">The report that employees must file is a "Report of External Professional Activities" or "REPA" report.In REPA reports, University employees identify their external professional activities and financial or business interests, and must disclose whether they earn or have an interest in excess of $10,000. Employees are not required to report the amount of their outside compensation in further detail.</p> <p class="opinion_quote">As covered employees under these University policies, head coaches are required to file REPA reports identifying their outside activities. This requirement, which applies to all covered University employees, is reinforced for coaches by NCAA regulations. NCAA Bylaw 11.2.2 requires that contracts with coaches include a stipulation that coaches submit reports to their educational institution concerning athletically related income from sources outside the institution. University coaches' contracts include this stipulation, and this reporting requirement for outside athletically related income is satisfied by the REPA report the coaches are already required to file.</p> <p class="opinion_quote">The University requires individuals to submit REPA reports about their outside income because those individuals are University employees. The data in the reports are clearly personnel data.</p> <p>Ms. Smith then asserted that the data in question are classified as private. She stated that the financial terms listed in section 13.43, subdivision 2(a)(1), all relate to the employee's employment with the government entity.</p> <p class="opinion_quote">with respect to the financial terms listed in the statute: "actual gross salary; salary range; contract fees; actual gross pension; the value and nature of employer fringe benefits" all relate to the employee's employment with the government entity.</p> <p class="opinion_quote">The last phrase in the list of financial information - "the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary"relates to the employee's public employment. There is no support, in the language of the statute or elsewhere, for the conclusion that this phrase relates also to the employee's outside private employment. On the contrary, the phrase itself clearly relates to remuneration paid to the employee by the public employer - the example of "expense reimbursement" paid "in addition to salary" refers to compensation paid by the government entity to the employee. When the government entity remunerates the employee through salary, expense reimbursement, bonuses, and so on, those data are public. If the employee by the government entity is required to report income he or she has earned from an outside source, in contrast, that is private personnel data.</p> <p class="opinion_quote">The <em>Daily</em> suggests that this conclusion should not hold for head coaches, because, it asserts, a coach's compensation package from the University "relies only partially" on University compensation, and that the University "is directly involved in arranging and negotiating" outside income for the coaches. Neither proposition is accurate, however. First, the University's compensation to coaches is based on a number of factors, including experience, academic success, athletic success, and the Big Ten and national markets for head coaches, and does not rely on the coaches' outside employment. Coaches who run camps do so through their own private businesses. Those camps are not run by the University of Minnesota. Coaches are no different from other University employees who also hold employment outside the University, including physicians, pharmacists, law professors, and other faculty members offering consulting services. Coaches' outside income is no more public than the outside income of these other public employees.</p> <p>The data requested by the newspaper about each of the four coaches, "annual athletically related income reports," are collected, created, received because the coaches are employees of the University. Therefore, the data are personnel data and classified by section 13.43.</p> <p>The Commissioner agrees with Ms. Smith that the financial data listed as public under section 13.43, subdivision 2(a)(1), relate to the coaches' employment at the University; not to outside income they may be earning. In the Commissioner's opinion, if the Legislature intended for these kinds of data to be public, the Legislature would clearly have so stated. Therefore, because that is not what section 13.43, subdivision 2(a)(1), says, the data in question are private.</p> <p>The following note is appropriate. As discussed above, the "value and nature of any employer paid fringe benefits" and "the amount of any added remuneration, including expense reimbursement, in addition to salary" are public pursuant to section 13.43, subdivision 2(a)(1). Thus, if, for instance, one of the coaches ran an athletic camp or was filming commercials for a particular sponsor and was allowed to do so during time for which he was being paid to work, this would amount to a paid fringe benefit or added remuneration from the University and would be considered public data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Lavrusik raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The University of Minnesota complied with Minnesota Statutes, Chapter 13, in responding to a data request for "annual athletically related income reports from head coaches Tubby Smith, Tim Brewster, J. Robinson and Don Lucia for the past 10 years." The data are private pursuant to Minnesota Statutes, section 13.43.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 29, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2669262669252022-01-19T19:19:42Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268025" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-09-29T15:14:43ZDid Independent School District 834, Stillwater, comply with Minnesota Statutes Chapter 13, in its response to a request for access to public data about certain applicants for employment by the District?September 29, 2008; School District 834 (Stillwater)36<div xmlns="http://www.w3.org/1999/xhtml"><body><p /><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><p /><h2> Facts and Procedural History: <br /></h2><p> On August 14, 2008, the Information Policy Analysis Division (IPAD) received a letter, dated August 13, 2008, from David C. Lorenz. In his letter, Mr. Lorenz asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data Independent School District 834, Stillwater, maintains. </p><p> IPAD, on behalf of the Commissioner, wrote to Keith R. Ryskoski, Superintendent of the District, in response to Mr. Lorenz's request. The purposes of this letter, dated August 18, 2008, were to inform him of Mr. Lorenz's request and to ask him to provide information or support for the District's position. A summary of the facts follows. </p><p> In a letter dated July 8, 2008, Mr. Lorenz wrote to the District and asked for the "names, addresses and all related public information for all the persons that have been selected and offered interviews and/or selected and interviewed for the position of Principal of the Stillwater High School during the period March 1, 2008 to July 8, 2008." </p><p> In a letter dated August 21, 2008, Cathy Moen, Director of Administrative Services for the District wrote to Mr. Lorenz (and copied IPAD), that she was enclosing "the public data regarding the applicants . . ." he requested. IPAD then wrote to Mr. Lorenz, in a letter dated August 29, 2008, asking him to confirm that he received the data. </p><p> On September 9, 2008, IPAD received a letter from Mr. Lorenz in which he stated "I don't believe that the information I requested . . . is the same as the list that Ms. Cathy Moen provided to me. I understand that [an individual] was interviewed for the position and [s/he] is not on Ms. Moen's list." </p><p> IPAD subsequently informed the District of Mr. Lorenz's correspondence, and invited the District to respond. On September 19, 2008, Ms. Moen wrote: "[the individual named by Mr. Lorenz] was not interviewed for this position. In fact, [s/he] was not an applicant for the position. The information initially provided to Mr. Lorenz includes public data on all applicants interviewed for the position of Principal at Stillwater Area High School." </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Lorenz's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Did Independent School District 834, Stillwater, comply with Minnesota Statutes Chapter 13, in its response to a request for access to public data about certain applicants for employment by the District? </p></td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. </p><p> Minnesota Statutes, section 13.43, classifies data on individuals who are current or former employees or applicants for employment by a government entity. Certain personnel data are public under subdivisions 2 and 3; subdivision 4 classifies all other personnel data as private. Pursuant to subdivision 3: </p><p class="opinion_quote"> Except for [undercover law enforcement officers], the following personnel data on current and former applicants for employment by a government entity is public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. Names of applicants shall be private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, "finalist" means an individual who is selected to be interviewed by the appointing authority prior to selection. </p><p> The District provided Mr. Lorenz with public data on five individuals. According to Ms. Moen, the list is complete, i.e., it contains the names and other public data of every individual who was selected to be interviewed for the position of principal. (Mr. Lorenz asked for addresses of the finalists, which are not public.) The individual named by Mr. Lorenz was not an applicant for the position. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Lorenz raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><p> Independent School District 834, Stillwater, complied with Minnesota Statutes Chapter 13, in its response to a request for access to public data about certain applicants for employment by the District. </p></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: September 29, 2008 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2680252022-01-19T19:19:41Z266258266520266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267846" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-09-08T15:14:43ZDid the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the $22,000 CD that was cashed in August 2006? Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the money showed on November 7, 2005, to be in the street fund?September 8, 2008; City of Palisade36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On July 28, 2008, the Information Policy Analysis Division (IPAD) received an email, dated July 25, 2008, from Carol Morris. In her letter, Ms. Morris asked the Commissioner to issue an advisory opinion regarding her access to certain data from the City of Palisade.</p> <p>IPAD, on behalf of the Commissioner, wrote to Gaylene Spolarich, City Clerk, in response to Ms. Morris' request. The purposes of this letter, dated August 6, 2008, were to inform her of Ms. Morris' request and to ask her to provide information or support for the City's position. On August 22, 2008, IPAD received a response, dated same, from Ms. Spolarich.</p> <p>A summary of the facts as provided by Ms. Morris is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">On March 13, 2008 I requested in writing from the Palisade City Clerk documents showing what happened to the $22,000 CD that was cashed in August, 2006 and documents showing what happened to the $61,614.55 that was in the street fund on a report dated 11-07-2005.</p> <p class="opinion_quote">With regard to the street fund, they are telling me the number in the street fund is wrong. Even if $61,614.55 (the ending balance) isn't the correct number, based on several other account balance sheets I sent you dating from 12-31-02 through 10-31-04, I know it was $64,390.75 as of October 31, 2004. These balance sheets were given out at council meetings. I am tired of arguing over the exact amount in the street fund, I just know there was a sum of money in there and I want to know where it went.</p> <p class="opinion_quote">I submitted my request for these items and clarified it again in my June 12, 2008 letter of request. Now I have only received a deposit slip showing the $22,000 deposit and the clerk's letter of explanation. I do not think they have responded appropriately and would like an advisory opinion. On document 'A,' which they sent me, it states that the money went into two places and the deposit slip shows the entire amount going into one place. Why aren't there two deposit slips? Document 'C,' from [the city auditor] to Gaylene Spolarich specifically states the money was deposited into two separate accounts.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Morris' opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the $22,000 CD that was cashed in August 2006?</li> <li>Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the money showed on November 7, 2005, to be in the street fund?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <h2>Issue 1</h2> <p><em>Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the $22,000 CD that was cashed in August 2006?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In responding to a data request, a government entity must provide the data, advise that the data are classified such that the requestor is denied access, or inform the requestor that the data do not exist.</p> <p>In addition, Minnesota Statutes, section 15.17, requires government entities to create records that document their official activities. Pursuant to Minnesota Statutes 138.17, official records must be kept for time periods as prescribed in the entity's record retention schedule.</p> <p>In her July 14, 2008, letter to Ms. Morris, Ms. Spolarich wrote:</p> <p class="opinion_quote">The investments that are made can be assigned to any account, when the $22,000 CD was cashed in, it was assigned to the sewer account but in fact was partial general fund as well as partial sewer account. The sewer account costs the City $27,600 annually for the operator and debt that was incurred, that does not include maintenance when a pump is an issue. If I had to track the flow of money, the $22,000 wouldn't come close to the debt that has been incurred.</p> <p class="opinion_quote">The reason for an annual audit is to assure that government funds are spent properly, if there was a problem with how monies were spent, the annual audits would show the discrepancies because all payments are generated by invoices.</p> <p>In her comments to the Commissioner, Ms. Spolarich wrote:</p> <p class="opinion_quote">The comment that the money should go into separate accounts, the city has one checking account which all fire funds, water/sewer payments, community center rental, grant monies, state county funding are deposited into, therefore, when the audit is conducted on an annual basis, the monies are then separated into the accounts they belong to.</p> <p>Ms. Morris asked for data documenting what happened to the $22,000 CD that was deposited into the City's account. The City responded by providing a copy of the canceled check that shows the money was deposited. In her July 14, 2008, letter to Ms. Morris, Ms. Spolarich wrote that the CD "was assigned to the sewer account but in fact was partial general fund as well as partial sewer account." In her comments to the Commissioner, Ms. Spolarich stated that the City has one checking account and "when the audit is conducted on an annual basis, the monies are then separated into the accounts they belong to."</p> <p>As discussed above, section 15.17, requires that government entities create and maintain official records. Section 15.17, subdivision 4, states that access to records containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.</p> <p>Here, Ms. Spolarich seems to be saying that the $22,000, while placed only in one bank account, was allocated to specific City programs. The designation of these monies to specific programs and how the money subsequently was spent would be an official activity that should be documented and then maintained as long as required by the City's retention schedule. Therefore, providing Ms. Morris with only a copy of the canceled check is not an appropriate response under Chapter 13 and section 15.17.</p> <h2>Issue 2</h2> <p><em>Did the City of Palisade comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the money showed on November 7, 2005, to be in the street fund?</em></p> <p>In her July 14, 2008, letter to Ms. Morris, Ms. Spolarich wrote:</p> <p class="opinion_quote">The CTAS balance you continue to refer to, should have gone into the Fire Department account, they generate $40,000+ from fire contracts, as you can see on the CTAS report, the Fire Department has no beginning balance. It is impossible for the street account to have that much in it when we are assessed approximately $6,000 annually and over half of that is paid out for snow maintenance and does not include other expenses such as lighting and repairs done to the street equipment.</p> <p>Ms. Morris asked for data that document what happened to money listed in a November 7, 2005, document to have been in the street fund. Ms. Morris provided the Commissioner with a copy of the November 7 document and the ending balance is shown as $61,614.55. As discussed above, pursuant to Chapter 13, the City needed to give Ms. Morris the data or inform her that the data do not exist. The City has not done this. Further, as the data at issue here are similar to the data discussed in Issue 1, if the City does not have the data, it is not in compliance with the requirements of section 15.17.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Morris raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The City of Palisade did not comply with Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 15.17, in regard to a request for data documenting what happened to the $22,000 CD that was cashed in August 2006.</li> <li>The City of Palisade did not comply with Minnesota Statutes, Chapter 13, in regard to a request for data documenting what happened to the money showed on November 7, 2005, to be in the street fund. Additionally, if the City does not have any data, it is not in compliance with section 15.17.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 8, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2678462666472665212022-01-19T19:19:41Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267556" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-09-04T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data Independent School District 877, Buffalo-Hanover-Montrose, maintains: the addresses and home telephone numbers of individuals who have participated in community education classes offered by the District?September 4, 2008; School District 877 (Buffalo-Hanover-Montrose)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On August 11, 2008, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Maureen Martell, Director of Human Resources for Independent School District 877, Buffalo-Hanover-Montrose. In her letter, Ms. Martell asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. A summary of the facts follows.</p> <p>The District received a request for the addresses and home telephone numbers of individuals who have participated in its community education classes. Ms. Martell asked whether community education programs are classified under Minnesota Statutes, Chapter 13, and if the data are public "directory information" data per Minnesota Statutes, section 13.32.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Martell's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data Independent School District 877, Buffalo-Hanover-Montrose, maintains: the addresses and home telephone numbers of individuals who have participated in community education classes offered by the District?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Data about students are governed by both Minnesota and federal law. Section 13.32 classifies data relating to students and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing regulations, 34 C.F.R. Part 99. Subject to limited exceptions, educational data are private and may not be released without consent.</p> <p>One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, "directory information" means "information contained in an education record of a student..." (See 34 C.F.R. section 99.3.)</p> <p>Under federal law, a "student" is a person who is or has been "in attendance" at an educational agency or institution. Section 13.32, subdivision 1(c), defines "student" as "an individual currently or formerly enrolled or registered . . . at a public educational agency or institution . . . ."</p> <p>It is the Commissioner's opinion that individuals who enroll in community education programs are not "students" as that term is defined under state and federal law. Those individuals, both adults and children, take classes (e.g., gymnastics, knitting, etc.), that are administered by public school districts, but they are not "in attendance" or "enrolled" at the District, as those terms are commonly understood. Accordingly, data about community education program participants are not classified under section 13.32.</p> <p>However, Minnesota Statutes, section 13.548 classifies as private the name, address, telephone number and certain other data collected and maintained by political subdivisions for the purpose of enrolling individuals in recreational and other social programs. The Commissioner is of the opinion that data about community education program participants are the kind of data the Legislature intended to classify under section 13.548.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Martell raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.548, the following data Independent School District 877, Buffalo-Hanover-Montrose, maintains, are classified as private: the addresses and home telephone numbers of individuals who have participated in community education classes offered by the District.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 4, 2008</p> </td> </tr> </tbody> </table> </div>2675562671272671162022-01-19T19:19:41Z266258266279266314266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267467" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-08-26T15:15:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the data when they are not collected, created, received, maintained, or disseminated by the City of Buffalo, but are collected and maintained by GovDelivery, a privately owned and operated software service company, for the purpose of transferring important city alerts and notifications to registrants on behalf of the City? If the data collected and maintained by GovDelivery are classified as government data, are they protected by the Data Practices Act, more specifically, Minnesota Statutes, section 13.15? August 26, 2008; City of Buffalo36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Notes: In 2013 the Legislature enacted Minnesota Statutes, section 13.356 which classifies as private certain personal contact and online account information</strong>.</p> <p><strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On July 21, 2008, IPAD received a letter dated July 17, 2008, from Melissa Mogen, on behalf of the City of Buffalo. In her letter, Ms. Mogen asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>A summary of the facts as provided by Ms. Mogen is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">The City of Buffalo maintains a government Web site on the City's server that contains information regarding various city issues, events, and projects. To improve communication with citizens, the Web site includes a link entitled "E-mail Updates" that utilizes e-mail to deliver important alerts, announcements, and updated information that are time sensitive and that are already published on the City's Web site. To service the automated e-mail subscription management system, the City has entered into a contract with GovDelivery, Inc., a privately owned and operated corporation .... The automated e-mail notification system works seamlessly with the City's Web site. GovDelivery watches the City's Web site and automatically sends appropriate e-mails when relevant changes are made to the Web site content.</p> <p class="opinion_quote">When an individual clicks on the "E-mail Updates" link, they are redirected to GovDelivery. In order to issue alerts, GovDelivery collects and maintains the registrant's personal information including their private e-mail address and cellular telephone number. Pursuant to the service contract, GovDelivery never shares information gathered through government service clients with third parties. The City of Buffalo does not collect, create, receive, maintain, or disseminate any of the e-mail addresses or cellular telephone numbers. Additionally, although the GovDelivery contract grants ownership of the user information to the City, the City has never received or maintained a copy of the data in any form, and just three people in the city have access to view the data only by logging into the GovDelivery computer.</p> <p class="opinion_quote">On June 21, 2008, the City of Buffalo received a request for a copy of the list of e-mail addresses for all registrants of the "E-mail Updates" link. The request alleges that the e-mail addresses are public data .... The City denied the request stating that the e-mail addresses relating to the "E-mail Update" service were not public data permitted to be released.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Mogen's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the data when they are not collected, created, received, maintained, or disseminated by the City of Buffalo, but are collected and maintained by GovDelivery, a privately owned and operated software service company, for the purpose of transferring important city alerts and notifications to registrants on behalf of the City?</li> <li>If the data collected and maintained by GovDelivery are classified as government data, are they protected by the Data Practices Act, more specifically, Minnesota Statutes, section 13.15?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p><em><strong>Issue 1:</strong> Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the data when they are not collected, created, received, maintained, or disseminated by the City of Buffalo, but are collected and maintained by GovDelivery, a privately owned and operated software service company, for the purpose of transferring important city alerts and notifications to registrants on behalf of the City?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In her opinion request, Ms. Mogen discusses that the City contracts with GovDelivery, a non-governmental entity. The Commissioner has not seen the contract. Ms. Mogen's description of the contractual relationship is that GovDelivery monitors the City's website and sends out email updates and alerts to individual subscribers. To provide this service on behalf of the City, GovDelivery collects and maintains certain subscriber information, including email addresses and cellular telephone numbers.</p> <p>Frequently, government entities (subject to Chapter 13) contract with non-government organizations (not subject to Chapter 13) to perform functions on their behalf. Chapter 13 discusses these contractual relationships in several provisions, the most recent and comprehensive of which is in Minnesota Statutes, section 13.05, subdivision 11. This provision went into effect on August 1, 1999. It states, in part:</p> <p class="opinion_quote">If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity.</p> <p>Here, pursuant to its contract with the City, GovDelivery, on behalf of the City, collects certain data from people. The data, then, are government data, subject to the requirements of Chapter 13.</p> <p>The City argues the data could be classified as not public under Minnesota Statutes, section 13.15. The Commissioner disagrees and does not think section 13.15 applies. Section 13.15 classifies <em>electronic access data</em> as not public. Electronic access data are defined as, "data created, collected, or maintained <em>about a person's access</em> to a government entity's computer for the purpose of: (1) gaining access to data or information; (2) transferring data or information; or (3) using government services." [Emphasis added.] The Commissioner's understanding is that this section classifies the following types of data about a person accessing a government computer: the IP (internet protocol) address of the person's computer, cookie information related to the person's internet browsing, geographic information of the person's computer, duration of time at the government website, person's activity on the government's website, and so on.</p> <p>In the situation Ms. Mogen presented, the data in question are not data about the individuals' access to a computer. Rather, they are data related to the data subjects wanting a service from the City.</p> <p>In addition, the data classified by section 13.15 are typically not provided by the data subject. They are data unintentionally provided by the data subject during that person's access to a government computer. In the situation before the Commissioner, the data subjects intentionally provided their email addresses and/or cellular phone numbers to GovDelivery, as it acted on behalf of the City.</p> <p>The Commissioner's conclusion is further buttressed by <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267156" title="01-093">Advisory Opinion 01-093</a>:</p> <p class="opinion_quote">Here, the District is producing an electronic newsletter. The District has collected the data in question because the subjects of the data wish to receive a copy of the newsletter. There is no provision in Chapter 13 or another statute that classifies these data as anything other than public. Therefore, the names, e-mail addresses, and telephone numbers of the subscribers are public.</p> <p>Here, the City (via GovDelivery) collected the subscriber information because the subjects of the data wish to receive notice of updates to and alerts from the City's website. There is no provision in Chapter 13 or another statute that classifies these data as anything other than public.</p> <p><em><strong>Issue 2:</strong> If the data collected and maintained by GovDelivery are classified as government data, are they protected by the Data Practices Act, more specifically, Minnesota Statutes, section 13.15?</em></p> <p>See Issue 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Mogen raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, data collected by GovDelivery as part of its contract with the City of Buffalo are public government data.</li> <li>See Issue 1.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 26, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2674672666312662802666052663742666102022-01-19T19:19:40Z266258266279266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267490" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-08-26T15:14:43ZDid Independent School District 192, Farmington, comply with Minnesota Statutes, Chapter 13, in its response to a request for a copy of its Superintendent’s employment contract?August 26, 2008; School District 192 (Farmington)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On July 14, 2008, IPAD received an e-mailed letter, dated July 13, 2008, from Timothy S. Burke. In his letter, Mr. Burke asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data Independent School District 192, Farmington, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Rosalyn Pautzke, Director of Administrative Services for the District, in response to Mr. Burke's request. The purposes of this letter, dated July 15, 2008, were to inform her of Mr. Burke's request and to ask her to provide information or support for the District's position. Mr. Jeffrey D. Carpenter, attorney for the District, responded in a letter dated July 30, 2008.</p> <p>Because the outcome of this opinion may affect the rights of the data subject, Superintendent Bradley L. Meeks, the Commissioner offered him an opportunity to submit comments; he did not. A summary of the facts follows.</p> <p>Mr. Burke asked the District for access to a copy of Dr. Meeks' contract in 2007. The District initially denied Mr. Burke's request on the basis that the data were private personnel data. Subsequently the District provided Mr. Burke with a redacted copy of the contract.</p> <p>Mr. Burke continued unsuccessfully to ask the District for access to an unredacted copy of the contract. In July 2008, Dr. Meeks, acting personally, and not on behalf of the District, provided Mr. Burke with an unredacted copy of his contract. The District itself continued to deny Mr. Burke access to an unredacted copy.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Burke's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Independent School District 192, Farmington, comply with Minnesota Statutes, Chapter 13, in its response to a request for a copy of its Superintendent's employment contract?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. 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. Section 13.02, subdivision 5, defines "data on individuals" as "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."</p> <p>The Commissioner, in this instance, has had the opportunity to compare the unredacted copy of the superintendent's contract with the redacted copy the District provided Mr. Burke; she has the following comments. The District redacted approximately half of the data in the contract. Examples of redacted data include statements about state statutes that are applicable to the contract; the duration of the contract and terms of expiration and termination; basic work year; calculation of a per diem salary; statute governing any medical leave; allowable outside activities; time allowed to pursue professional development; severance pay; process for annual evaluation.</p> <p>The Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267791" title="03-008" target="_blank">Advisory Opinion 03-008</a>:</p> <p class="opinion_quote">Section 13.43, subdivision 2(a)(1), states that the following data are public: "actual gross salary; salary range; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursements, in addition to salary."</p> <p class="opinion_quote">It is the Commissioner's opinion that the Legislature intended to make public all of the various types of compensation afforded to public employees and to make public the basis for that compensation. A practical application suggests that each component of an employee's compensation fits into one of the categories the Legislature included in subdivision 2(a)(1). For purposes of this opinion, the commissioner will limit his remarks to a discussion of two categories: actual gross salary and added remuneration.</p> <p class="opinion_quote">It appears to the Commissioner that actual gross salary describes that portion of an employee's compensation which is fixed and paid on a regular basis. It follows that the basis for a change in an employee's actual gross salary also is public because the underlying reasons for any such change are public, e.g., a change in the contract of the employee's bargaining unit, a change in the employee's length of service, a change in the employee's job title.</p> <p class="opinion_quote">Data about any remuneration an employee receives in addition to his/her actual gross salary also are public. Added remunerations, as opposed to actual gross salary, are not necessarily fixed or regular, e.g., merit increases, overtime pay. In addition to the dollar amount of any added remuneration, a description of the type of remuneration also is public.</p> <p>Pursuant to <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267791" title="03-008" target="_blank">03-008</a>, each component of an employee's total compensation fits into one of the categories the Legislature included in subdivision 2(a)(1), namely, "actual gross salary; salary range; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursements, in addition to salary."</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267791" title="03-008" target="_blank">03-008</a>, the Commissioner opined that the terms and conditions of employment that apply to a bargaining unit are public. Here, the data are comparable even though they apply to a class of one, i.e., the District's superintendent. However, the District redacted the contract so that it is not possible for the public to determine the basis for the superintendent's total compensation, including gross salary, value and nature of fringe benefits, and any added remuneration.</p> <p>There is one section of the contract that does not relate in some way to the basis for the District superintendent's compensation. Section IX (F) states that the District School Board shall evaluate the superintendent at least annually, and describes generally the process the Board will follow. Clearly, as part of a collective bargaining agreement this kind of data is public, but it doesn't fit the language that describes public data on individuals under section 13.43. However, as noted, the data in Section IX (F) of the contract are data that describe the general process the District uses to evaluate its superintendent, not specific performance evaluation data about Dr. Meeks. The data are not data on individuals as defined under section 13.02, subdivision 5, and are therefore public.</p> <p>The District erred when it denied Mr. Burke access to the full contents of the contract; it should not have redacted any data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Burke raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Independent School District 192, Farmington, did not comply with Minnesota Statutes, Chapter 13, in its response to a request for a copy of its Superintendent's employment contract.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 26, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2674902667402667412022-01-19T19:19:40Z266258515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266639" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-08-12T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data provided to the City of Saint Paul by private electric companies: property addresses for those properties that have gone without power for more than thirty days and the reason for the power shut off?August 12, 2008; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><strong>Note: Minnesota Statutes, section 216B.0976, supersedes the conclusion the Commissioner reached here. See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266903" title="09-002" target="_blank">09-002</a>.</strong> <p><br /></p> <h2>Facts and Procedural History:</h2> <p>On July 14, 2008, the Information Policy Analysis Division (IPAD) received an email dated same, from Chad Staul, Assistant City Attorney for the City of Saint Paul. In his letter, Mr. Staul asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>A summary of the facts as Mr. Staul provided them is as follows. In his opinion request he wrote:</p> <p class="opinion_quote">The City of Saint Paul does not run or maintain a public electric utility. The City residents have those needs met by privately owned companies. Those privately owned companies have turned down requests from the public to disclose all property addresses (presumably residential and commercial) that have gone without power for more than thirty days. The reason for the power shut off has not been specifically requested.</p> <p class="opinion_quote">Those private electric companies, however, are required by Saint Paul Legislative Code Chapter 46 (enclosed with this email) to provide this information to the City's code enforcement department for the purposes of allowing the City to monitor these properties in accordance with it policies. (This chapter has been in force in some manner since September 20, 1988)</p> <p class="opinion_quote">The city now has this data and a request is being made on the City to provide all of the property addresses that have gone without power for more than thirty days. This amounts to potentially hundreds of addresses within the City of Saint Paul.</p> <p class="opinion_quote">Minn. Stat. Sec. 13.685 classifies data on customers of municipal electric utilities as private and nonpublic data. However, there is no similar exception for data on customers of a privately owned electric utility that comes to a government entity.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Staul's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data provided to the City of Saint Paul by private electric companies: property addresses for those properties that have gone without power for more than thirty days and the reason for the power shut off?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Section 13.03, subdivision 1) <p>Although data on customers of municipal electric utilities are classified as private pursuant to section 13.685, the data at issue here are neither coming to the City of Saint Paul from a municipal electric company nor does the City run or own a municipal electric utility. Therefore, the data in question are not classified by section 13.685.</p> <p>Rather, the City is collecting the data in question from privately owned utility companies. The ordinance cited by Mr. Staul requires that the utilities provide the following data to the City:</p> <p class="opinion_quote">a notice whenever service has been discontinued for any reason for a period of thirty (30) days. The notice shall include the reason for the discontinuation of service.</p> <p>(Saint Paul Legislative Code, section 46.02)</p> <p>Once the property address and reason for discontinuation data are in the City's possession, they are government data. Because there is no statutory provision that classifies these data as anything other than public, they are public. This is the case for data about both residential and commercial properties.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Staul raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>The following data provided to the City of Saint Paul by private electric companies are public pursuant to Minnesota Statutes, Chapter 13: the property addresses for those properties that have gone without power for more than thirty days and the reason for the power shut off.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 12, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2666392665052022-01-19T20:51:30Z266258513982266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266870" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-08-08T15:14:43ZIn a situation where bids are opened and tabulated by designated city personnel prior to the Vadnais Heights City Council deciding to award the contract, what is the classification, pursuant to Minnesota Statutes, section 13.591, of the bids and accompanying materials of each bidder when (1) the bids are opened and ranked by City personnel and (2) when the City Council awards the contract? August 8, 2008; City of Vadnais Heights36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 26, 2008, IPAD received a letter dated June 25, 2008, from Caroline Bell Beckman, an attorney representing the City of Vadnais Heights. In her opinion request, Ms. Beckman asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>A summary of the facts as Ms. Beckman provided them is as follows:</p> <p class="opinion_quote">As you know, Minn. Stat. section 429.041 Subd. 1 requires the city to obtain competitive bids for projects over [$50,000]. Pursuant to that statute, the bids are open [sic] by designated city officers and consulting engineers, and tabulated (ranked) in advance of the future meeting where the council will decide whether to accept the bid of the lowest responsible bidder or reject all bids. Obviously, some time elapses between the time that the bids are tabulated and ranked, and the time that the council takes action as indicated above.</p> <p class="opinion_quote">A question has risen as to when the bids and accompanying material of each bidder becomes public data. Minnesota Statute section 13.591 Subd. 3(a) states that all data in a bidder's response to a bid are private or non-public data until "completion of the selection process," which is defined as when "the government entity has completed its evaluation and has ranked the responses," after which all remaining data by all bidders are public, with certain exceptions.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Beckman's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>In a situation where bids are opened and tabulated by designated city personnel prior to the Vadnais Heights City Council deciding to award the contract, what is the classification, pursuant to Minnesota Statutes, section 13.591, of the bids and accompanying materials of each bidder when (1) the bids are opened and ranked by City personnel and (2) when the City Council awards the contract?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified.</p> <p>In relevant part, section 13.591, subdivision 3(a), states:</p> <p class="opinion_quote">Data submitted by a business to a government entity in response to a request for bids as defined in section 16C.02, subdivision 11, are private or nonpublic until the bids are opened. Once the bids are opened, the name of the bidder and the dollar amount specified in the response are read and become public. All other data in a bidder's response to a bid are private or nonpublic data until completion of the selection process. For purposes of this section, completion of the selection process means that the government entity has completed its evaluation and has ranked the responses. After a government entity has completed the selection process, all remaining data submitted by all bidders are public with the exception of trade secret data.</p> <p>According to section 13.591, subdivision 3(a), not until the City has completed its evaluation and ranked the responses do all data submitted by all bidders become public (except for certain trade secret data). Ms. Beckman explained that in the City's process, certain staff open the bids and rank them, and, at a future meeting, the City Council evaluates whether to accept the lowest responsible bidder or reject all bids. The Commissioner assumes that part of the City Council's responsibility also is to make the final determination as to which bidder is the lowest responsible bidder. This assumption is buttressed by language in Minnesota Statutes, section 429.041, subdivision 1 (Council Procedure - plans and specifications, advertisement for bids), that states, "the council may direct that the bids shall be opened publicly by two or more designated officers or agents of the municipality and tabulated in advance of the meeting at which they are to be considered by the council."</p> <p>Thus, because the City Council, not City staff, makes the final decision regarding the bids, the evaluation of the bids cannot have been completed until the City Council has made its final decision. At the point in time the bids are opened by City staff, the name of each bidder and the dollar amount specified in the bidder's response are public. At the point in time the City Council makes its final decision as to which bidder will be awarded the contract, all remaining data submitted by all bidders are public with the exception of trade secret data.</p> <p>Finally, it is important to note that Minnesota Statutes, Chapter 13D (the Open Meeting Law), allows public bodies to discuss not public data at an open meeting without liability or penalty if the disclosure "relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body." (<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447#/detail/appId/1/id/267725" title="06-016" target="_blank">Advisory Opinion 06-016</a>.)</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Beckman raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>At the point in time the bids are opened by City staff, the name of each bidder and the dollar amount specified in the bidder's response are public.</p> <p>At the point in time the City Council makes its final decision as to which bidder will be awarded the contract, all remaining data submitted by all bidders are public with the exception of trade secret data.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 8, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2668702666782022-01-19T19:19:39Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266815" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-08-06T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to the Minneapolis Civilian Police Review Authority’s (CRA) investigative process: the data described in the CRA’s Administrative Rule 6(B)(4)(d)? Given the answer(s) to Issue 1, would it violate a data subject’s rights if the CRA disclosed to a complainant the fact that his/her complaint was in whole or in part not sustained, as set forth in the Minneapolis Code of Ordinances 172.120, and CRA Rule 11 (K) and Rule 12, regarding the complainant’s right to make a request for reconsideration?August 6, 2008; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 6, 2008, IPAD received a letter, dated June 3, 2008, from Susan Segal, Minneapolis City Attorney. In her letter, Ms. Segal asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Minneapolis Civilian Police Review Authority (CRA) maintains. IPAD requested clarification, which Lisa Needham, Assistant City Attorney, provided on June 25, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to Ann Walther, Michael Friedman, Michael Weinbeck, and James Cannon, in letters dated June 26, 2008, to inform them of Ms. Segal's request, because they had asked for the opportunity to provide comments, which each of them did. A summary of the facts follows.</p> <p>Ms. Segal wrote:</p> <p class="opinion_quote">Via ordinance, the City established [the CRA] 'for the purpose of investigating allegations of misconduct on the part of officers of the Minneapolis Police Department and making findings of fact and conclusions based upon those findings of fact.' <em>See</em> Minneapolis Code of Ordinances [M.C.O.] 172.10. . . . .</p> <p class="opinion_quote">The CRA's investigative process includes the following steps:</p> <p class="opinion_quote">-Receive complaint</p> <p class="opinion_quote">-Perform preliminary review and determine whether the investigation is warranted</p> <p class="opinion_quote">-If warranted, investigate complaint.</p> <p class="opinion_quote">-Following investigation, investigator prepares findings and recommends that the complaint be sustained or not sustained</p> <p class="opinion_quote"><em>See</em> M.C.O. 172.70-172.95.</p> <p>A panel of the CRA conducts a hearing when an investigation is complete, after which the panel must, within 30 days, issue a report containing findings of fact and a determination of either "complaint sustained" or "complaint not sustained." The CRA must notify the complainant and the officer of the hearing panel's determination. See CRA Rule 11 (K).</p> <p>If the complaint is not sustained by the CRA, the complainant may, within 30 days, request a reconsideration hearing; the CRA must grant such a request. If the complaint is sustained by the CRA, the CRA must forward, to the chief of police, the investigatory file, findings of fact, and the panel's determination.</p> <p>Ms. Segal wrote that under M.C.O. 172.130:</p> <p class="opinion_quote">Once the file is forwarded to the police chief, the CRA's role in the matter is complete. The CRA has no authority to take disciplinary action against a police officer. The decision of whether to impose discipline is in the exclusive purview of the police department and its chain of command. Pursuant to the CRA Ordinance, however, the police department is not allowed to revise the findings or determination of the CRA, even if the police chief determines that no discipline is warranted.</p> <p class="opinion_quote">Once the CRA file has been presented to the chief of police, the chief may, at his discretion, impose discipline, determine that discipline will not be imposed, or request that the CRA reconsider the sustained finding. . . . The chief is required to base his disciplinary decision on the facts as determined by the CRA. . . . If the chief decides to impose discipline, the officer is, of course, free to grieve the proposed disciplinary action under the collective bargaining agreement.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Segal's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to the Minneapolis Civilian Police Review Authority's (CRA) investigative process: the data described in the CRA's Administrative Rule 6(B)(4)(d)?</li> <li>Given the answer(s) to Issue 1, would it violate a data subject's rights if the CRA disclosed to a complainant the fact that his/her complaint was in whole or in part not sustained, as set forth in the Minneapolis Code of Ordinances 172.120, and CRA Rule 11 (K) and Rule 12, regarding the complainant's right to make a request for reconsideration?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Minnesota Statutes, section 13.43 classifies data on individuals who are current or former employees of a government entity. 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.</p> <p>In a situation in which someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447#/detail/appId/1/id/267431" title="04-047" target="_blank">Advisory Opinion 04-047</a>, the Commissioner opined:</p> <p class="opinion_quote">Although the word 'status' is not defined in section 13.43, or elsewhere in Chapter 13, the Minnesota Supreme Court used the following definition in a recent case: '[a] stage of progress or development.' (See <em>Navarre v. South Washington County Schools</em>, 652 N.W.2d, 9, 22 (Minn. 2002) (footnote 4).) . . . Thus, the 'status' of a complaint against an employee means whether the complaint has been filed, is under investigation, is closed, no discipline was imposed, or similar descriptions of the stages in an entity's investigatory process. By releasing only data explaining the status of a complaint/charge in response to a data request, the government entity is able to inform the public what it is doing or has done in response to a complaint while simultaneously protecting the rights of employees who are the subjects of the complaint.</p> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data related to the Minneapolis Civilian Police Review Authority's (CRA) investigative process: the data described in the CRA's Administrative Rule 6(B)(4)(d)?</em></p> <p>According to Ms. Segal:</p> <p class="opinion_quote">The CRA has promulgated administrative rules providing more detailed information on CRA processes. Specifically of importance to this request, the CRA's administrative rules [Rule 6(B)(4)(d)] state that the following information is 'status' information and therefore public data:</p> <p class="opinion_quote">1. The fact that a complaint has been withdrawn by the Complainant. <br /> 2. The fact that a Complaint has been dismissed. <br /> 3. The fact that a Complaint is in mediation. <br /> 4. The fact that a mediation agreement has been reached. <br /> 5. The fact that a Complaint is being investigated. <br /> 6. The fact that a Complaint has been referred to a panel of the board for hearing. <br /> 7. The fact that a Request for Reconsideration to the full board is pending. <br /> 8. The fact that a complaint was not sustained, or that a complaint was sustained. <br /> 9. The fact that a Complaint has been referred to the Chief.</p> <p>According to Ms. Segal, the CRA's current practice is that, even though the statements numbered 8 and 9 provide otherwise, prior to a final disposition it does not make public the fact that a complaint was sustained, and that a complaint was referred to the police chief. She wrote that the City considers these data private, because they are data related to "interim pre-discipline steps."</p> <p>Ms. Segal further described the CRA investigative process:</p> <p class="opinion_quote">In cases where there is a 'split' decision by the CRA - a finding that some allegations are sustained while other allegations are not - the CRA has been directed to advise complainants that 'some or all of their allegations were not sustained.' While it could be inferred from this wording that part of the complaint was sustained, the CRA wanted a mechanism to inform complainants when there is a split decision of their right to seek reconsideration.</p> <p>In discussing the implications of the ordinance requirements, Ms. Segal wrote:</p> <p class="opinion_quote">Although the CRA's ordinance requires all files be forwarded to the chief of police for review, in practice, the only files that have been forwarded are those where a complaint has been sustained. Thus, disclosure of the fact that a CRA file is being 'forwarded to the chief for a disciplinary decision' would, as a practical matter, reveal that a complaint has been sustained.</p> <p class="opinion_quote">When none of the allegations are sustained, complainants are advised that 'the complaint was not sustained' as opposed to the statement in split decisions that 'some or all of the allegations were not sustained.'</p> <p>As Ms. Segal noted, the CRA has no authority to impose disciplinary action against a police officer. She stated "[t]he decision of whether to impose discipline is in the exclusive purview of the police department and its chain of command. . . . . [However,] the chief is required to base his disciplinary decision on the facts as determined by the CRA." Thus, the entire CRA process is pre-disciplinary. Accordingly, until there is a final disposition of disciplinary action, the only data related to the CRA's investigation into a complaint or charge that are public are the existence and status of the complaint or charge.</p> <p>According to the CRA's Administrative Rule 6(B)(4)(d), the data described in the statements numbered 1-9, listed above, are all "status" data and therefore are public, regardless whether there has been a final disposition of disciplinary action. The Commissioner respectfully disagrees; in her opinion, some of the data at issue are public and some are private.</p> <p>The Commissioner agrees that the data in the statements numbered 1, 2, 3, 4, 5 and 6 above are "status" data and are therefore public.</p> <p>One note about the statements numbered 3 and 4, which relate to mediation (complaint is in mediation; mediation agreement reached). According to M.C.O. 172.150 (k), all complaints shall be referred to mediation except under specified circumstances. Given the direction the Court provided in <em>Navarre</em>, if the CRA at some point decides to provide more details regarding eligibility for mediation in its Administrative Rules, it is possible that statements numbered 3 and 4 might under some circumstances disclose more than the status of the complaint or charge.</p> <p>The CRA's process provides that the CRA shall notify the complainant immediately of the hearing panel's determination. If the complainant disagrees with the decision, s/he has the right to ask for reconsideration. (See M.C.O. 172.120 and CRA Rules Rule 11(K)(4) and (5).) The Commissioner finds this aspect of the CRA's process problematic.</p> <p>As the Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267481" title="01-037" target="_blank">Advisory Opinion 01-037</a>, an entity cannot reveal to a complainant that his/her complaint has been substantiated prior to final disposition of disciplinary action; to do so amounts to a release of more data than simply the status of the complaint. The Commissioner acknowledges that in order to provide the right to reconsideration, the complainant must be informed of the hearing panel's determination. However, as the CRA process is structured, doing so violates the officer's rights, as the Commissioner discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267481" title="01-037" target="_blank">01-037</a>.</p> <p>Statement number 7 states that a request for reconsideration is pending. Prior to final disciplinary action, that statement reveals not public data. Thus, the data described in statement number 7 are not public.</p> <p>Ms. Segal noted that despite the Rule, the CRA considers the data described in the statements numbered 8 and 9 to be private. The Commissioner concurs. However, once there is no possibility that the police chief will take disciplinary action, the Commissioner believes it is permissible for the City to inform the public that the matter is closed and no disciplinary action was taken.</p> <p>In summary, the CRA's investigative process occurs, in its entirety, before the police chief makes any decision about discipline. Therefore, all of the data generated in that process are classified as private, with the exception of the existence or status of any complaint or charge. The Commissioner is of the opinion that the following data enumerated in the CRA's Administrative Rule 6(B)(4)(d) are public, as they describe the "status" of a complaint or charge: statements numbered 1-6. Statements numbered 7-9 describe more than just the status of the complaint or charge, and therefore are not public prior to final disposition of disciplinary action.</p> <h2>Issue 2:</h2> <p><em>Given the answer(s) to Issue 1, would it violate a data subject's rights if the CRA disclosed to a complainant the fact that his/her complaint was in whole or in part not sustained, as set forth in the Minneapolis Code of Ordinances 172.120, and CRA Rule 11 (K) and Rule 12, regarding the complainant's right to make a request for reconsideration?</em></p> <p>As discussed above, it would violate an officer's rights if the CRA disclosed to a complainant, absent the data subject's consent, that his/her complaint was in whole or in part not sustained, because at that point in the process, there has been no final disposition of disciplinary action. As structured, the part of the CRA's process that allows for reconsideration is flawed, because it requires disclosure of more data than just the status of the complaint or charge.</p> <p>The Commissioner acknowledges that the CRA process was intended to be as open to public scrutiny as possible. However, it must be designed in conformity with the requirements of Chapter 13.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Segal raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, the following data related to the Minneapolis Civilian Police Review Authority's (CRA) investigative process, namely the data described in the CRA's Administrative Rule 6(B)(4)(d), are classified thus: the statements numbered 1-6 are public. The statements numbered 7-9 are private data prior to a final disposition of disciplinary action.</li> <li>Given the answer(s) to Issue 1, it would violate a data subject's rights if the CRA disclosed to a complainant the fact that his/her complaint was in whole or in part not sustained, as set forth in the Minneapolis Code of Ordinances 172.120, and CRA Rule 11 (K) and Rule 12, regarding the complainant's right to make a request for reconsideration.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 6, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2668152668142022-01-19T19:19:38Z266258266264266309266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267749" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-07-31T15:14:43ZIf School District 544, Fergus Falls, releases data in two anonymous letters that set forth complaints about X, would X’s rights as a data subject be violated?July 31, 2008; School District 544 (Fergus Falls)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History:</h2> <p>On June 12, 2008, IPAD received a letter dated June 11, 2008, from X. In his/her letter, X asked the Commissioner to issue an advisory opinion regarding his/her data practices rights relating to certain data that School District 544, Fergus Falls, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Jerry Ness, Superintendent of the District, in response to X's request. The purposes of this letter, dated June 16, 2008, were to inform him of X's request and to ask him to provide information or support for the District's position. On July 3, 2008, IPAD received comments, dated July 1, 2008, from Mr. Ness.</p> <p>A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:</p> <p class="opinion_quote">The Fergus Falls School District has in its possession two anonymous letters submitted to the School Board alleging complaints against [X, a former employee of the District].No disciplinary action resulted as a result of the complaints.</p> <p class="opinion_quote">It is my understanding that the [District] has received a request from a third party for the release of the letters. I have been informed via legal counsel that the [District] has made an initial determination to release the letters to the third party requestor. As the employee in question and the subject of the data, I disagree with the [District's] determination and believe that this data is private personnel data in accordance with Minn. Stat. section 13.43.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on X's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">If School District 544, Fergus Falls, releases data in two anonymous letters that set forth complaints about X, would X's rights as a data subject be violated?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statues, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Pursuant to Minnesota Statutes, section 13.601, subdivision 2, correspondence between individuals and elected officials is private data on individuals but may be made public by either the sender or the recipient.</p> <p>Here, according to X, the two letters in question were sent to "the School Board" and the authors did not identify themselves. The Commissioner assumes the District obtained the letters from the school board members. In his comments to the Commissioner, Mr. Ness wrote, "Our [District] has reviewed the issue, but we have nothing further to add to the inquiry. We welcome the decision of the Department of Administration."</p> <p>Pursuant to section 13.601, the correspondence data in the hands of the school board members either are private or public. Pursuant to Minnesota Rules 1205.0400, private data may be disclosed to individuals within a government entity whose work assignments reasonably require they have access to the data. It is reasonable that an elected official might need to seek assistance from the government entity with which the elected official is associated to deal with an issue raised by a member of the public. In this way, the school board members would have had authority to share private data with the District.</p> <p>If the board members considered the data to be public, the members did not need authority to disclose the data to the District.</p> <p>The issue then becomes how the data are classified in the possession of the District. Depending upon the type of data in the letters, it is possible there is a more specific classification(s) for the data than the general classification in section 13.601. Minnesota Statutes, section 645.26, subdivision 1, provides that when a general provision is in conflict with a special provision, the "two shall be construed, if possible, so that effect may be given to both."</p> <p>Although the Commissioner has not seen the correspondence data, X (a former District employee) stated the data contain complaints made against X. It is likely, therefore, that at least some of the data in the correspondence are classified pursuant to section 13.43. Given the language in section 645.26, subdivision 1, it is reasonable that the data in the District's hands are classified by specific applicable statutory provisions (such as section 13.43) while the data in the hands of the board members are private unless the board members have made the data public.</p> <p>Because the Commissioner has not seen the data in question, she cannot make a specific determination of the classification of the correspondence data in the District's hands. However, given the language in section 645.26, subdivision 1, any data about X in the District's hands are classified pursuant to section 13.43.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that X raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Commissioner is unable to determine with certainty whether School District 544, Fergus Falls, will violate X's rights as a data subject if it releases data in two anonymous letters that set forth complaints about X. However, based on Minnesota Statutes, section 645.26, subdivision 1, data about X in the District's possession are classified pursuant to Minnesota Statutes, section 13.43.</p> </td> </tr> </tbody> </table> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 31, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2677492662683793082664672022-01-19T19:19:38Z266258266309266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267648" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-07-23T15:14:43ZAre the members of the Drug Formulary Committee subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D? Are the members of the Drug Formulary Committee in compliance with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they gather together before each regular meeting behind closed doors? Are the members of the Drug Formulary Committee in compliance with Minnesota Statutes, section 13D.01, subdivision 6 when they review printed materials at a meeting but do not make those materials available to the public in the meeting room?July 23, 2008; Drug Formulary Committee36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 8, 2008, IPAD received a letter, dated May 6, 2008, from John P. Borger. In his letter, Mr. Borger asked the Commissioner, on behalf of his client the Pharmaceutical Research and Manufacturers of America (PhRMA) to issue an advisory opinion whether the members of the Drug Formulary Committee (DFC) at the Department of Human Services (DHS) had violated the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). In a letter to Mr. Borger dated May 13, 2008, IPAD requested additional information. The additional information was received by IPAD on June 9, 2008. Mr. Borger submitted the $200.00 fee required by section 13.072.</p> <p>On June 12, 2008, IPAD wrote to Dr. William Korchik, Chairman of the DFC. In its letter, IPAD informed Dr. Korchik of Mr. Borger's request and gave the members of the DFC an opportunity to explain their position. The members of the DFC presented their position in a letter from their attorney, Sarina L. Turner, dated July 10, 2008.</p> <p>A summary of the facts as presented is as follows.</p> <p>Representatives of PhRMA have attended DFC meetings and provided comments on agenda items. In late 2007, Linda Carroll-Shern, Senior Regional Director for PhRMA sent a letter to Cal Ludeman, Commissioner of DHS. In that letter, Ms. Carroll-Shern raised several concerns about how the DFC meetings were being conducted including, among other things, the applicability of certain provisions of the OML. Commissioner Ludeman responded in a letter dated January 2, 2008, indicating that the members of the DFC were not subject to the OML because they do not transact public business.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Borger's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Are the members of the Drug Formulary Committee subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D?</li> <li>Are the members of the Drug Formulary Committee in compliance with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they gather together before each regular meeting behind closed doors?</li> <li>Are the members of the Drug Formulary Committee in compliance with Minnesota Statutes, section 13D.01, subdivision 6 when they review printed materials at a meeting but do not make those materials available to the public in the meeting room?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>To provide a context for the issues presented in this opinion, a review of the Minnesota Supreme Court's general interpretation of the OML is of assistance. The court has recognized several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) "to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences"; (2) "to assure the public's right to be informed"; and (3) "to afford the public an opportunity to present its views to the [public body]." <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.,</em> 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); <em>see</em><em>St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law "will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies").</p> <p><em>Prior Lake American</em> at 735. See also <em>Star Tribune Co. v. Univ. of Minn. Board of Regents,</em> 683 N.W.2d 274, 280 (Minn. 2004). With this background and the Court's instruction to construe the law in favor of public access, the next step is to review the issues presented by Mr. Borger on behalf of PhRMA.</p> <h2>Issue 1:</h2> <p><em>Are the members of the Drug Formulary Committee subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D?</em></p> <p>The DFC is a legislatively-mandated committee whose members are appointed by the Commissioner of DHS, a state agency. DHS is directed to provide staff to support the DFC's work. See Minnesota Statutes, section 256B.0625, subdivision 13c. The part of section 13D.01, subdivision 1 that applies to state agencies is found in paragraph (a). Unfortunately, the layout of the language in subdivision 1 of section 13D.01 and the lack of definitions for some of the terms make the analysis difficult.</p> <p>Before analyzing the language, the Commissioner encourages the Legislature to review the language in subdivision 1 of section 13D.01 both for clarity and to determine whether modifications are needed to address the increased use of committees and boards by state agencies since the language in subdivision (a) was adopted in 1973. As more advice and recommendations are coming from those with expertise or interest in particular subjects through boards and committees, state agencies and other units in the executive branch need clearer direction about when the OML applies.</p> <p>The pertinent language in subdivision 1 states:</p> <p class="opinion_quote">All meetings, including executive sessions, must be open to the public <br /> (a) of a state <br /> (1) agency, <br /> (2) board, <br /> (3) commission, or <br /> (4) department, <br /> when required or permitted by law to transact public business in a meeting; . . . .</p> <p>Both Mr. Borger and Ms. Turner agree that the resolution of this issue is dependent on whether the members of the DFC are "transacting public business." To better answer this question, some background information is helpful.</p> <p>Chapter 256B of Minnesota Statutes is entitled "Medical Assistance for Needy Persons" and is a different program than medical assistance for the elderly. Because the DFC is established in Chapter 256B, it operates in support of the medical programs that serve the needy in Minnesota.</p> <p>The individuals appointed to the DFC by the Commissioner of Human Services must meet one of the following credentials:</p> <ol> <li>Three physicians licensed in Minnesota and actively practicing medicine</li> <li>One physician licensed in Minnesota with an active practice that treats people with mental illness</li> <li>At least three pharmacists licensed in Minnesota who are actively practicing their profession</li> <li>One consumer representative</li> <li>An unspecified number of health care professionals licensed in their field with recognized knowledge in the ". . .clinically appropriate prescribing, dispensing, and monitoring of covered outpatient drugs."</li> </ol> <p>See section 256B.0625, subdivision 13c. The committee members cannot be employees of DHS. Subdivision 13c also states that the DFC is to ". . .carry out duties as described in subdivisions 13 to 13g [of section 256B.0625]."</p> <p>The duties assigned to the DFC are as follows. References in the list below to "Commissioner" refer to the Commissioner of DHS.</p> <p>A. Consult about which over-the-counter drugs medical assistance will cover if they are prescribed (subdivision 13).</p> <p>B. Review and comment on the drug formulary established by the Commissioner (subdivision 13d).</p> <p>C. Consult with the Commissioner on the list of specialty pharmacy products that must be obtained from specific providers that have negotiated a lower reimbursement rate with the Commissioner. Covered conditions include: multiple sclerosis, HIV/AIDS, transplantation, hepatitis C, growth hormone deficiency, Crohn's Disease, rheumatoid arthritis and certain forms of cancer (subdivision 13e).</p> <p>D. Review and recommend which drugs will require prior authorization (subdivision 13f).</p> <p>E. Establish general criteria to be used for the prior authorization of brand-name drugs when there are generically equivalent drugs available (subdivision 13f).</p> <p>F. Recommend drugs that should have prior authorization (subdivision 13f).</p> <p>G. Conduct a review of a drug to determine if it should require prior authorization when requested by the Commissioner (subdivision 13f).</p> <p>H. When a drug requires prior authorization, receive information on the impact on: the quality of patient care, program costs, whether the drug is subject to clinical abuse or misuse, and relevant data from the state Medicaid program, if available. The DFC must review the drug and hold a public forum to receive public comment (subdivision 13f).</p> <p>I. Recommend general criteria to be used for prior authorization drugs to the Commissioner (subdivision 13f).</p> <p>J. Consult with the Commissioner about additions, deletions and modifications to the preferred drug list which are the drugs that do not require prior authorization (subdivision 13g).</p> <p>In performing these duties, the members of the DFC apply their expertise to information received and make choices that are then sent to the Commissioner of Human Services for use in providing medicine to the poor in Minnesota that are paid for with federal and state dollars.</p> <p>The question to be answered is whether the members of the DFC are "transacting public business." This phrase is not defined and so it is interpreted according to "common and approved usage." Minnesota Statutes, section 645.08(1). Several factors direct the Commissioner to conclude that the members of the DFC are transacting public business.</p> <p>First, several of the assigned duties have been mandated by the Legislature by the use of the word "shall." Second, the drug formulary is established without having to comply with the rulemaking process (see section 256B.0625subdivision 13d(a)) and so the DFC provides comment that would otherwise come from the public during the rulemaking process.</p> <p>Third, Minnesota courts have concluded that the OML applies to a public body even if no decision or action is taken. See <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty Schools,</em> 332 N.W.2d 1 (Minn. 1983). Fourth, the DFC has been holding its meetings so the public can attend and has allowed attendees to participate in discussions. Fifth, the influence the DFC has on the policies set by the Commissioner of Human Services that direct the provision of medical care to the needy in Minnesota affects how taxpayer dollars are spent and so is public business.</p> <p>Evaluating all of the information about the role and responsibilities of the DFC, the impact the members' advice has on the provision of medical care to the needy in Minnesota, and following the Supreme Court's direction to interpret the OML in favor of public access, the Commissioner concludes that the members of the DFC are subject to the OML.</p> <h2>Issue 2:</h2> <p><em>Are the members of the Drug Formulary Committee in compliance with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they gather together before each regular meeting behind closed doors?</em></p> <p>Both Mr. Borger and the DFC indicate that the members of the DFC gather before meetings to eat dinner. The Minnesota courts have indicated that the OML is not violated if the members of a body subject to the OML are at a social gathering together. <em>See St. Cloud Newspapers,</em> 332 N.W.2d at 7.</p> <p>While the Commissioner accepts the statements on behalf of the members of the DFC that no business is conducted during dinner, the best way to avoid the appearance of a violation is to eat dinner in an open area. The Commissioner encourages the members of the DFC to change their dining area so that the public can monitor the conversations of the DFC members.</p> <h2>Issue 3:</h2> <p><em>Are the members of the Drug Formulary Committee in compliance with Minnesota Statutes, section 13D.01, subdivision 6 when they review printed materials at a meeting but do not make those materials available to the public in the meeting room?</em></p> <p>Section 13D.01, subdivision 6 requires that one copy of any materials provided to the members of a public body needs to be available in the meeting room for the public in attendance to review. If members receive data that are not public as that term is defined in Chapter 13, those not public data need not be provided to the public in attendance.</p> <p>Mr. Borger stated that there have been some instances where members of the DFC were handed materials, reviewed the materials and returned the copies to staff. No copy of these materials was provided in the meeting room. When questioned about the practice, Commissioner Ludeman of the Department of Human Services wrote in a January 2, 2008, letter that</p> <p class="opinion_quote">to the extent that printed materials used by the committees is prepared by contracted vendors, who view their materials as proprietary, and [sic] Department will be unable to make such materials available to the public.</p> <p>In her response on behalf of the members of the DFC, Ms. Turner indicates that data classified as trade secret would not be provided in the meeting room.</p> <p>The Commissioner notes that there is a difference between "proprietary materials" and data that are trade secrets. Minnesota Statutes, section 13.37 defines the term "trade secret" (subdivision 1(b)) and classifies trade secret data as private or nonpublic (subdivision 2). There are no similar provisions for "proprietary materials" and so those data are public under the presumption in section 13.03, subdivision 1.</p> <p>As Mr. Borger was unable to provide specific instances where public data were provided to members of the DFC but not to the public attending the meeting, the Commissioner is unable to conclude that the members of the DFC have violated section 13D.01, subdivision 6. The Commissioner encourages the members of the DFC to have staff help them determine if data provided by contract vendors meet the definition of "trade secret" in section 13.37. If the data provided by contract vendors do not meet the definition, then the data should be provided to the public in the meeting room in compliance with subdivision 6.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The members of the Drug Formulary Committee are subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D.</li> <li>The members of the Drug Formulary Committee are in compliance with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they gather together before each regular meeting behind closed doors so long as they do not conduct DFC business. The members of the DFC are encouraged to gather in open areas rather than behind closed doors before each regular meeting to avoid the appearance of an OML violation.</li> <li>The members of the Drug Formulary Committee are in compliance with Minnesota Statutes, section 13D.01, subdivision 6 when they review printed materials containing data that are classified as not public at a meeting but do not make those materials available to the public in the meeting room.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 23, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2676482665722663122022-01-19T19:19:38Z266258266309266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267838" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-07-22T15:14:43ZPursuant to Minnesota Statues, Chapter 13, what is the classification of certain data maintained by the Minnesota Department of Natural Resources (DNR) that relate to the North American Wildlife Enforcement Officer Association conference and subsequent DNR investigation?July 22, 2008; Minnesota Department of Natural Resources36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 3, 2008, IPAD received a letter dated same, from Sheila Gebhard, on behalf of the Department of Natural Resources (DNR). In her letter, Ms. Gebhard asked the Commissioner to issue an advisory opinion regarding the classification of certain data the DNR maintains. To her opinion request, Ms. Gebhard attached comments relating to the data classification issue from Paul Hannah, an attorney representing the <em>Pioneer Press</em>.</p> <p>In a letter dated June 9, 2008, IPAD invited Mr. Hannah to submit comments on the issues raised by Ms. Gebhard. He did so in a letter dated June 24, 2008.</p> <p>A summary of the facts as Ms. Gebhard provided them is as follows.</p> <p class="opinion_quote">On April 2, 2008, the Minneapolis Star Tribune requested DNR data involving the 2007 North American Wildlife Enforcement Officer Association (NAWEOA) Conference. All public data were provided to the Star Tribune. Subsequently, several news stories were published beginning May 5, 2008, that included alleged violations of state law by the DNR.</p> <p class="opinion_quote">As a direct result of the news stories the following took place:</p> <p class="opinionquoteinquote">- On May 5, 2008 the Office of the Legislative Auditor notified DNR Commissioner Holsten that an investigation into DNR activities related to the conference would take place.</p> <p class="opinionquoteinquote">- A legislative hearing was held on Friday May 9, 2008, to discuss and review alleged violations. At the hearing, DNR Commissioner Mark Holsten informed Legislators that an external firm would also be hired to investigate any DNR employee violations that may have occurred while preparing and hosting the NAWEOA Conference.</p> <p class="opinionquoteinquote">- On Monday May 12, 2008, two DNR employees were placed on administrative leave while the internal investigation takes place.</p> <p class="opinionquoteinquote">- A contract with the Parker Rosen Law Firm was issued to investigate employee misconduct, effective date May 13, 2008, or as soon as the State obtained all required signatures. All signatures were obtained on May 16.</p> <p class="opinion_quote">On May 14, 2008, the DNR received an email from Mr. Chris Niskanen, Pioneer Press, asking for access to all documents previously requested by the [Star Tribune] that related to the conference and its organizers and attendees, including written correspondence and emails. In addition, the request was for all subsequent documents relating to the conference since the Star Tribune's request, including documents relating to the investigation of the conference and correspondence among DNR employees about the investigation.</p> <p>Ms. Gebhard provided a copy of the data request to the Commissioner (of Administration).</p> <p>Ms. Gebhard responded to the data request in a May 21, 2008, email:</p> <p class="opinion_quote">Because of an internal investigation and a legislative audit involving DNR activities relating to the NAWEOA conference, all DNR data related to the conference is currently classified as confidential data on individuals or protected nonpublic data not on individuals under Minnesota Statutes, section 13.392.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Gebhard's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to Minnesota Statues, Chapter 13, what is the classification of certain data maintained by the Minnesota Department of Natural Resources (DNR) that relate to the North American Wildlife Enforcement Officer Association conference and subsequent DNR investigation?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified.</p> <p>Of relevance here, the following data are classified by section 13.392, subdivision 1:</p> <p class="opinion_quote">Data, notes, and preliminary drafts of reports created, collected, and maintained by the internal audit offices of government entities, or persons performing audits for government entities, and relating to an audit or investigation are confidential data on individuals or protected nonpublic data until the final report has been published or the audit or investigation is no longer being pursued actively, except that the data shall be disclosed as required to comply with section 6.67 or 609.456. This section does not limit in any way:</p> <p class="opinion_quote">(1) the state auditor's access to government data of political subdivisions or data, notes, or preliminary drafts of reports of persons performing audits for political subdivisions; or</p> <p class="opinion_quote">(2) the public or a data subject's access to data classified by section 13.43.</p> <p>Section 13.392 classifies data maintained by internal audit offices of government entities or persons performing audits for government entities. Section 13.392 does not define "audit." Minnesota Statutes, section 645.08, provides that words and phrases are to be construed according to their common and approved usage. M<em>erriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines "audit" as "a formal examination of an organization's or individual's accounts or financial situation." Thus, it is reasonable to conclude that government entities can use section 13.392 as a basis to withhold data only when the reason for the audit or investigation revolves around financial issues.</p> <p>Ms. Gebhard did not provide specific information regarding the issues stemming from the 2007 conference. Nor did she state that the DNR has an internal audit office. She wrote that the Legislative Auditor would investigate DNR activities related to the conference and that the DNR had hired a law firm to "investigate employee misconduct."</p> <p>To the extent the Legislative Auditor's investigation involves financial matters, the DNR may withhold, under section 13.392, "data, notes, and preliminary drafts of reports created, collected, and maintained" by the Legislative Auditor relating to the investigation. Other data are classified as public pursuant to the general presumption in section 13.03, subdivision 1.</p> <p>To the extent the law firm's investigation into employee misconduct involves financial matters, the DNR may withhold, under section 13.392, "data, notes, and preliminary drafts of reports created, collected, and maintained" by the law firm relating to the investigation. Other data are classified as public pursuant to the general presumption in section 13.03, subdivision 1.</p> <p>Finally, once the "final report has been published or the audit or investigation is no longer being pursued actively", any data classified as not public under section 13.392, become public. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267649" title="03-018" target="_blank">Advisory Opinion 03-018</a>, the Commissioner opined about the status of personnel data in a final report:</p> <p class="opinion_quote">The Commissioner notes, however, that the situation here is complicated because the Report appears to contain data about District employees. Data about employees typically are classified pursuant to section 13.43 (personnel data). Section 13.392 provides that the data in the Report become public and section 13.43 provides that any private personnel data in the Report remain not public.</p> <p class="opinion_quote">As Chapter 645 provides, it is important to try to give effect to both section 13.392 and section 13.43.</p> <p class="opinion_quote">The Commissioner concludes, therefore, that if the Report contains personnel data classified as private under section 13.43 - and the District is in the best position to make that determination - those data remain private after the final audit/report is published.</p> <p class="opinion_quote">In determining the classification of personnel data in the Report, the District should be mindful of the fact that data related to employee complaints/charges and related disciplinary action are classified by section 13.43, subdivision 2(a), clauses (4) and (5).Thus, if data in the Report relate to a complaint made against an employee, the name of the employee in connection with the fact that a complaint was made and the status of that complaint would be public. If, in relation to that complaint, disciplinary action is taken and a final disposition occurs (see section 13.43, subdivision 2(b)), additional data would become public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Gebhard raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>To the extent the investigations by the Legislative Auditor and the law firm involve financial data, "data, notes, and preliminary drafts of reports created, collected, and maintained" by the Legislative Auditor and the law firm that relate to the investigation are not public pursuant to Minnesota Statutes, section 13.392.</p> <p>The data relating to the Legislative Auditor's investigation become public once the Legislative Auditor publishes a final report or is no longer actively pursuing an investigation. However, data that are personnel data are classified pursuant to section 13.43.</p> <p>The data relating to the law firm's investigation become public once the law firm publishes a final report or is no longer actively pursuing an investigation. However, data that are personnel data are classified pursuant to section 13.43.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 22, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2678382667952663122022-01-19T19:19:38Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267248" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-07-17T15:14:43ZDid the Minnesota Department of Agriculture (MDA) comply with Minnesota Statutes, Chapter 13, in regards to a May 6, 2008, request for a copy of an RFP associated with the contract between MDA and the University of Minnesota; and all correspondence between MDA, the University, and any other entity related to the project?July 17, 2008; Minnesota Department of Agriculture36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On June 3, 2008, IPAD received a letter dated June 5, 2008, from Charles Tyler. In his letter, Mr. Tyler asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Minnesota Department of Agriculture.</p> <p>IPAD, on behalf of the Commissioner (of Administration), wrote to Gene Hugoson, Commissioner of the Department of Agriculture, in response to Mr. Tyler's request. The purposes of this letter, dated June 12, 2008, were to inform him of Mr. Tyler's request and to ask him to provide information or support for the Department's position. On June 26, 2008, IPAD received a response, dated June 25, 2008, from Commissioner Hugoson.</p> <p>A summary of the facts as Mr. Tyler provided them is as follows. In a letter dated May 6, 2008, Mr. Tyler (using a pseudonym) wrote to Commissioner Hugoson:</p> <p class="opinion_quote">Our firm has been contracted to evaluate the report prepared by the University of Minnesota concerning the feasibility of using E20 as a motor fuel.</p> <p>In the May 6 letter, Mr. Tyler referred to a data request he had made on April 28, 2008, to someone at the Department who is not the responsible authority. Mr. Tyler reiterated his request for "a copy of the Request for Proposal associated with the contract entered between your agency and the U of M regarding the feasibility study." The request also included, "copies of all correspondence between your agency, the U of M, and any other entity related to the project."</p> <p>In his opinion request, Mr. Tyler wrote that on May 9, 2008, he received a voice mail message from Doug Spanier, of the Department, informing him that the data had been compiled and that Mr. Tyler should contact Mr. Spanier to arrange for payment and shipping.</p> <p>In a May 12, 2008, email, Mr. Spanier wrote to Mr. Tyler:</p> <p class="opinion_quote">Our search has found approximately 800 emails dealing with the correspondence between us and any outside entity regarding the E20 driveability [sic] study. My understanding from our I.T. department is that we should be able to put them all on a disk for you; thus, there would be no cost to you on printing, just the cost of the disk, which is .50 and staff time for searching and compiling the data. The total cost is $20. Please remit payment to the address. Once we have received payment, we will send you the disk.</p> <p>In an email dated May 13, 2008, Mr. Tyler wrote to Mr. Spanier advising that he had mailed the check.</p> <p>In an email dated May 21, 2008, Mr. Tyler wrote to Mr. Spanier: "What is the status of my data request? The check was mailed on May 15."</p> <p>In an email dated May 23, 2008, Mr. Spanier responded: "We are currently working through the emails checking to see if there is any protected information. We should be able to get the information to you next week some time."</p> <p>Mr. Tyler wrote in his opinion request that on June 2, 2008, he contacted the Department's Data Practices Compliance Official and did not receive any response. Mr. Tyler also wrote, "As of this date, I have not received the data requested."</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Tyler's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Minnesota Department of Agriculture (MDA) comply with Minnesota Statutes, Chapter 13, in regards to a May 6, 2008, request for a copy of an RFP associated with the contract between MDA and the University of Minnesota; and all correspondence between MDA, the University, and any other entity related to the project?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>In his comments, Commissioner Hugoson wrote:</p> <p class="opinion_quote">On May 9, Doug Spanier contacted [Mr. Tyler] and informed him that the Department was in the process of determining the extent of the request and to contact him to discuss how he would like the data sent to him.</p> <p class="opinion_quote">On Monday May 12th, you will note in the attached email that Mr. Spanier notified [Mr. Tyler] that the Department had approximately 800 emails, and that if he would like to narrow his search to reduce the amount in the request, he could let him know.</p> <p class="opinion_quote">The Department received [Mr. Tyler's] check on the 15th, and division personnel were notified on May 16th to start assembling the request. During the course of the next two weeks, Department personnel had to go through over 800 emails and correspondence to determine if there were any nonpublic data. This information was also on three separate staff computers, so the Department had to also coordinate between 3 divisions and determine how to compile the emails in one place to create one document so that the information could be copied electronically to a disk.</p> <p class="opinion_quote">On June 5, 2008, which was 30 days after the official request was received; the Department mailed him the information and emailed him to let him know the Department had sent the information (see attachment #7 email).On June 10th the Department sent [Mr. Tyler] [supplemental information that was inadvertently missed].</p> <p class="opinion_quote">In sum, the Department took 30 days from the date of the official request to search and compile the data requested by [Mr. Tyler]. The information included over 800 emails from three separate individuals and involved personnel from three separate divisions. During these 30 days, the individuals involved also had their regular duties to perform.The Department not only responded in a timely fashion, but went out of its way to accommodate [Mr. Tyler's] questions and concerns about the data.</p> <p>Mr. Tyler made his request to the Department's responsible authority on May 6, 2008. On June 5, 2008, the Department apparently mailed to Mr. Tyler some of the data he requested. Also on that same day, Mr. Spanier sent Mr. Tyler an email stating that the data were en route. (The Department sent a copy of this email to the Commissioner of Administration.) Apparently, the Department sent some additional data to Mr. Tyler on June 10, 2008. Assuming Mr. Tyler has received the data from the Department, the Commissioner concludes, given the volume of the data requested, that the Department's response was appropriate and timely.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Tyler raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Minnesota Department of Agriculture (MDA) complied with Minnesota Statutes, Chapter 13, in regards to a May 6, 2008, request for a copy of an RFP associated with the contract between MDA and the University of Minnesota; and all correspondence between MDA, the University, and any other entity related to the project.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 17, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2672482663992022-01-19T19:19:37Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267319" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-07-09T15:14:43ZDid the members of the Roseville City Council comply with the requirements of Minnesota Statutes, section 13D.01, subdivision 6 at a meeting held on February 11, 2008?July 9, 2008; Roseville City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 16, 2008, IPAD received a letter, dated May 15, 2008, from John Kysylyczyn. In his letter, Mr. Kysylyczyn asked the Commissioner to issue an advisory opinion whether the members of the Roseville City Council (Council) had violated the Open Meeting Law, Minnesota Statutes, Chapter 13D, at a meeting held on February 11, 2008. In a letter to Mr. Kysylyczyn dated May 19, 2008, IPAD requested additional information. The additional information was received by IPAD on May 27, 2008. Mr. Kysylyczyn submitted the $200.00 fee required by section 13.072.</p> <p>On May 29, 2008, IPAD wrote to Mr. Craig Klausing, Chairman of the Council. In its letter, IPAD informed Mr. Klausing of Mr. Kysylyczyn's request and gave the members of the Council an opportunity to explain their position. The Council presented its position in a letter from its attorney, Ann R. Goering, dated June 20, 2008.</p> <p>A summary of the facts as presented is as follows.</p> <p>The Council held a regular meeting on February 11, 2008. Agenda item 10 was a public hearing to impose a penalty for violation of laws and ordinances related to the sale of alcoholic beverages. The City of Roseville posts the documents provided to Council members before a meeting on its website. Mr. Kysylyczyn had downloaded the documents for the February 11, 2008, meeting and compared those documents to the ones available in the meeting room. The materials were identical. One of the items in the packet was a recommendation to revoke the license to sell alcoholic beverages due to the violation of the laws and ordinances by the license holder.</p> <p>During the course of the discussion of Agenda item 10, one Council member commented that the recommended penalty was a 30-day suspension of the license and a $1,000 fine. After reviewing a recording of the meeting at home twice, Mr. Kysylyczyn sent an email to the City Manager asking if there were additional documents provided to Council members but not provided to the public.</p> <p>The City Manager responded by providing a copy of an email message he had sent to Council members the morning of the February 11th meeting. The email provided additional information from city staff about Agenda item 10, including a suggested penalty of a 30-day suspension of the license and a $1,000 fine. The email was not printed or provided in the packet of materials available to the public in the meeting room during the February 11, 2008, meeting.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Kysylyczyn's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the members of the Roseville City Council comply with the requirements of Minnesota Statutes, section 13D.01, subdivision 6 at a meeting held on February 11, 2008?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Before turning to the issue raised by Mr. Kysylyczyn, it is necessary to establish that the Council is subject to the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. According to Minnesota Statutes, section 13D.01, subdivision 1(b)(4), the governing body of a city is subject to the requirements of the OML. Therefore, the Council is subject to Chapter 13D.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) "to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences"; (2) "to assure the public's right to be informed"; and (3) "to afford the public an opportunity to present its views to the [public body]." <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.,</em> 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); <em>see</em><em>St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law "will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies").</p> <p><em>Prior Lake American</em> at 735. With this background and the Court's instruction to construe the law in favor of public access, the next step is to review the issue presented by Mr. Kysylyczyn.</p> <p>The statutory language at issue here is found in Minnesota Statutes, section 13D.01, subdivision 6. That subdivision states:</p> <p class="opinion_quote">(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and: <br /> (1) distributed at the meeting to all members of the governing body; <br /> (2) distributed before the meeting to all members; or <br /> (3) available in the meeting room to all members; <br /> shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</p> <p class="opinion_quote">(b) This subdivision does not apply to materials classified by law as other than public as defined in chapter 13, or to materials relating to the agenda items of a closed meeting held in accordance with the procedures in section 13D.03 or other law permitting the closing of meetings.</p> <p>Ms. Goering, the attorney for the Council, argues that because the statute only speaks of "printed materials," and because the email message from the City Manager was not printed, it did not need to be provided in the public packet in the meeting room. Additionally, she argues that neither a City employee nor the Council itself directed that the email be distributed and so the members of the Council did not violate subdivision 6.</p> <p>The language in subdivision 6 does speak of "printed materials" and, technically, an email that is not printed does not fit the commonly understood meaning of that phrase. The Legislature should revise the language to recognize the use of electronic and other types of communication.</p> <p>The Commissioner is not persuaded by Ms. Goering's argument for two reasons. It would be an absurd result to apply the language in subdivision 6 when the email is printed and not apply it when the email is not printed. <em>See</em> Minnesota Statutes, section 645.17. Furthermore, taking the argument to its next logical step, public bodies could avoid providing any meeting materials to members of the public by merely sending all communications via email. Given the Minnesota Supreme Court's direction in <em>Prior Lake American</em> to interpret the requirements of the OML in favor of public access and the need for clear requirements to assist with compliance, the Commissioner cannot accept the limited reading of subdivision 6 suggested by the Council.</p> <p>The second argument presented is that neither a City employee nor a member of the Council directed that the email be distributed. This argument fails because the email was sent by the City Manager to the members of the Council. Therefore, a City employee chose to distribute the email and that portion of the subdivision 6 has been satisfied.</p> <p>The Commissioner concludes that the members of the Council should have made the text of the email sent by the City Manager on the morning of February 11, 2008, available to the public as part of the materials provided in the meeting room per the requirements of section 13D.01, subdivision 6.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Kysylyczyn raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The members of the Roseville City Council did not comply with the requirements of Minnesota Statutes, section 13D.01, subdivision 6 at a meeting held on February 11, 2008 when they failed to provide a copy of an email they received.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 9, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2673192663462022-01-19T19:19:37Z266258266263266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267367" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-06-26T15:14:43ZIs the Minnesota Department of Education’s (MDE) determination regarding a report of alleged student maltreatment public data on individuals pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(5), or alternatively, is the MDE’s determination private data on individuals pursuant to Minnesota Statutes, section 626.556, subdivision 11(a), and Minnesota Statutes, section 13.03, subdivision 4(c)?June 26, 2008; School District 31 (Bemidji)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 7, 2008, IPAD received a letter dated same, from Kevin Rupp and Erin Ische. In their letter, Mr. Rupp and Ms. Ische asked the Commissioner to issue an advisory opinion regarding the classification of certain data School District 31, Bemidji, maintains.</p> <p>IPAD, in a letter dated May 22, 2008, invited the Minnesota Department of Education (MDE) to submit comments. On June 11, 2008, IPAD received a response from Amy Roberts, Director of Compliance and Assistance. In a letter dated May 22, 2008, IPAD also invited X, the data subject, to submit comments. S/he did not do so.</p> <p>A summary of the facts provided by Mr. Rupp and Ms. Ische is as follows. In the opinion request, they wrote:</p> <p class="opinion_quote">[MDE] received a report alleging maltreatment of a student by a teacher employed by the District. This report was made pursuant to Minn. Stat. section 626.556. Subsequently, the MDE conducted an investigation into the alleged maltreatment. The School District conducted its own internal investigation as well.</p> <p class="opinion_quote">the MDE issued its determination regarding the allegations of maltreatment. This determination was sent to the School District by the MDE in the form of a letter.</p> <p class="opinion_quote">In its determination, the MDE concluded there was a preponderance of the evidence that maltreatment occurred on the part of the teacher. Based on the MDE's determination, the School District entered into a Resolution Agreement with the teacher [The Agreement establishes that the District disciplined the teacher. The Agreement also represents the final disposition of the disciplinary action.]</p> <p class="opinion_quote">The School District now wishes to determine the classification of the MDE's report.</p> <p>Mr. Rupp and Ms. Ische provided a copy of the report to the Commissioner.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Rupp and Ms. Ische's opinion request, the Commissioner agreed to address the following issue: <p>Is the Minnesota Department of Education's (MDE) determination regarding a report of alleged student maltreatment public data on individuals pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(5), or alternatively, is the MDE's determination private data on individuals pursuant to Minnesota Statutes, section 626.556, subdivision 11(a), and Minnesota Statutes, section 13.03, subdivision 4(c)?</p> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified (see section 13.03, subdivision 1).</p> <p>Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Mr. Rupp and Ms. Ische wrote, "The MDE's determination was clearly used as a basis [of the disciplinary action] and includes data on the specific reasons for the School District's disciplinary action against the teacher. This analysis would tend to suggest that the MDE's determination is public data."</p> <p>The MDE argues that the data in the report are private because Minnesota Statutes, section 626.556, subdivision 11(a), classifies as private "all records concerning individuals maintained by a local welfare agency or agency responsible for assessing or investigating the report under this section" (See also section 13.03, subdivision 4(c).)</p> <p>The Commissioner previously has opined about the balance the Minnesota Legislature has struck in section 13.43. Of relevance here:</p> <p class="opinion_quote">In this particular balancing of interests, the public is able to find out that charges or complaints have been made against an employee and how the government entity is handling those complaints or charges. If a final disciplinary action is imposed on the employee, the public will also be able to learn the details of the action itself and why the action was taken, including all data that supports the action. If no disciplinary action is imposed or if a proposed disciplinary action is overturned because the employee grieved a proposed disciplinary action under a collective bargaining agreement, the employee's interest is protected because there is very limited dissemination to the public of any details about the allegations.</p> <p>(See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267528" title="94-042" target="_blank">Advisory Opinion 94-042</a>.)</p> <p>Here, a final disposition has occurred and the District used the MDE's determination in the maltreatment report as a basis for disciplining X. In addition, the report includes data on the specific reasons for the District's disciplinary action against X. As stated above, data documenting the basis for the disciplinary action and the specific reasons for the disciplinary action are public under section 13.43, subdivision 2(a)(5). Although the data in the report are classified as private pursuant to section 626.556, subdivision 11, pursuant to section 13.03, subdivision 4(a), the data can change classification:</p> <p class="opinion_quote">The classification of data in the possession of an entity shall change if it is required to do so to comply with a specific statute applicable to the data in the possession of the disseminating or receiving agency.</p> <p>Thus, it is the Commissioner's opinion that any data in the maltreatment report that document the basis for the disciplinary action against X and any data in the report that represent the specific reasons for the disciplinary action against X are public data. Remaining data in the report that do not document the basis for the disciplinary action or represent the specific reasons for the disciplinary action are private pursuant to section 626.556, subdivision 11.</p> <p>The Commissioner notes the following. In releasing to the public the data in the report that document the basis for the disciplinary action against X and that represent the specific reasons for the disciplinary action against X, it appears the District also would release private data about the victim, and might release private data about other students and District employees other than X. (The District is in the best position to determine whether the identities of these individuals would be revealed.) The data about students are classified as private pursuant to sections 13.32 and 626.556, subdivision 11. The data about employees other than X are classified as private pursuant to sections 13.43 and 626.556, subdivision 11.</p> <p>The Commissioner concludes it would be incongruous for the District to release private data about District students and private data about District employees other than X when releasing public data related to the disciplinary action taken against X. (Pursuant to Minnesota Statutes, section 645.17, when ascertaining legislative intent, the Legislature does not intend a result that is absurd or unreasonable.) Therefore, the District must redact any such data in the report.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Rupp and Ms. Ische raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <p>Data in the Minnesota Department of Education's (MDE) determination regarding a report of alleged student maltreatment that document the basis for the disciplinary action and the specific reasons for the disciplinary action are public under section 13.43, subdivision 2(a)(5). However, any of these data that identify District students, including the victim, and other District employees are private (see sections 13.32, 13.43, and 626.556, subdivision 11. In addition, any data in the report that do not document the basis for the disciplinary action or represent the specific reasons for the disciplinary action are private pursuant to section 626.556, subdivision 11.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 26, 2008</p> <hr /></td> </tr> </tbody> </table> </div>2673672666302664652663772664332022-07-18T18:08:56Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267984" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-06-17T15:14:43ZDid the Cass Lake Economic Development Authority comply with Minnesota Statutes, Chapter 13, with regard to a request for access to copies of minutes from certain meetings (2003 – February 3, June 2, October 6, November 3, December 1; 2004 – all meetings; 2005 all meetings; 2006 – all meetings; 2007 all meetings; 2008 – January and February) and annual reports from years 2003, 2004, 2005, 2006, and 2007? Did the Cass Lake Economic Development Authority Board comply with Minnesota Statutes, Chapter 13D.04, with regard to providing notice for the past four regular Board meetings (January, February, March, and April 2008)?June 17, 2008; Cass Lake Economic Development Authority36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <h2>Facts and Procedural History: <br /></h2> <p>On May 2, 2008, IPAD received a letter dated April 29, 2008, from Sue Uhrinak, City of Cass Lake. In her letter, Ms. Uhrinak asked the Commissioner to issue an advisory opinion regarding issues related to the Cass Lake Economic Development Authority (EDA).</p> <p>IPAD, on behalf of the Commissioner, wrote to Pat Finn, Chair of the EDA, in response to Ms. Uhrinak's request. The purposes of this letter, dated May 13, 2008, were to inform him of Ms. Uhrinak's request and to ask him to provide information or support for the EDA's position. On June 4, 2008, IPAD received a response, dated May 26, 2008, from Mr. Finn.</p> <p>A summary of the facts as provided by Ms. Uhrinak is as follows. She wrote in her opinion request:</p> <p class="opinion_quote">The City of Cass Lake created an [EDA] with an enabling resolution on May 22, 2002 and adopted its By-Laws September 11, 2002. I submitted a written request to the Chairperson of the EDA on March 18, 2008 requesting copies of the Minutes of their meetings and actions taken by the board. I have received no response as of today's date.</p> <p>Ms. Uhrinak attached a copy of her data request to her opinion request. She further wrote:</p> <p class="opinion_quote">The EDA is to hold regularly scheduled meetings on the 1st Thursday of each month. For the past 4 meetings, there have been no notices posted at the offices. The EDA holds it's [sic] meetings at City Hall and there are 2 bulletin boards that are used for postings meetings. I work at City Hall and have never seen any posting for the regular EDA meetings on either of the bulletin boards.</p> <p>Ms. Uhrinak also attached to her opinion request a copy of an April 24, 2008, email from Scott Anderson, the City Attorney. In his email, Mr. Anderson states:</p> <p class="opinion_quote">When a City creates an EDA, as Cass Lake did in 2002 in Resolution 7-2002, it creates a separate and distinct legal entity that is a political subdivision of the State of Minnesota, with the power to sue and be sued. Minn. Stat. Section 469.091.</p> <p>As a political subdivision of the State of Minnesota, the EDA is a public body. As a public body, and as an authority created pursuant to law and local resolution, it is subject to the requirements of the open meeting law and the data practices act.</p> <hr /> <p><br /></p> <h2>Issues: <br /></h2> Based on Ms. Uhrinak's opinion request, the Commissioner agreed to address the following issues: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>Did the Cass Lake Economic Development Authority comply with Minnesota Statutes, Chapter 13, with regard to a request for access to copies of minutes from certain meetings (2003 - February 3, June 2, October 6, November 3, December 1; 2004 - all meetings; 2005 all meetings; 2006 - all meetings; 2007 all meetings; 2008 - January and February) and annual reports from years 2003, 2004, 2005, 2006, and 2007?</li> </ol> <ol start="2" type="1"> <li>Did the Cass Lake Economic Development Authority Board comply with Minnesota Statutes, Chapter 13D.04, with regard to providing notice for the past four regular Board meetings (January, February, March, and April 2008)?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>As Mr. Anderson discussed in his April 24, 2008, email, Minnesota Statutes, section 469.091, subdivision 1, authorizes cities to establish economic development authorities. Pursuant to subdivision 2 of section 469.091, economic development authorities are political subdivisions and public bodies.</p> <p>Political subdivisions are subject to the requirements of Chapter 13 (see section 13.02, subdivision 11), and public bodies are subject to the requirements of Minnesota Statutes, Chapter 13D (see Minnesota Statutes, section 13D.01, subdivision 1). Thus, the Cass Lake EDA is subject to both Chapter 13 and Chapter 13D. Mr. Finn did not provide information indicating the EDA has appointed or designated an individual to serve as the responsible authority. Assuming that has not happened, Mr. Finn, in his role as Chair, presumably fills the role of responsible authority.</p> <h2>Issue 1:</h2> <p><em>Did the Cass Lake Economic Development Authority comply with Minnesota Statutes, Chapter 13, with regard to a request for access to copies of minutes from certain meetings (2003 - February 3, June 2, October 6, November 3, December 1; 2004 - all meetings; 2005 all meetings; 2006 - all meetings; 2007 all meetings; 2008 - January and February) and annual reports from years 2003, 2004, 2005, 2006, and 2007?</em></p> <p class="opinion_quote">Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comments to the Commissioner, Mr. Finn wrote:</p> <p class="opinion_quote">I have only been associated with the EDA officially since possibly September of 2006, and didn't even become chair until February 7, 2007. And most of the meetings that we held never even had a quorum to officially hold a meeting. So therefore, if there are missing minutes for the past 6 years, then not only were the past EDA secretary's [sic] not doing their jobs, but the City Clerks as well.</p> <p class="opinion_quote">As far as 2007, when we did hold official meetings, the minutes were left with the EDA file along with the key for the door, at the City Council Chambers at close of the meeting, or dropped off the following day.</p> <p class="opinion_quote">As far as giving any reports to the City Council, including annual reports, nobody has ever asked for them.</p> <p class="opinion_quote">In closing, I would like to state that the EDA is still trying to establish protocol.</p> <p>The Commissioner previously has opined that when a government entity responds to a data request, it should inform the requestor that the data do not exist, or inform the requestor that the data are classified as not public, or provide the data to the requestor. Ms. Uhrinak wrote that she had not received any response, which is not appropriate. Here, because minutes and annual reports are public data, Mr. Finn, as the person in charge of the EDA, needs to give Ms. Uhrinak copies of the minutes and annual reports she has requested or inform her that they do not exist.</p> <p>If the minutes and annual reports do not exist, the EDA faces some potential issues related to its compliance with the Official Records Act (Minnesota Statutes, section 15.17). As a government entity, the EDA is subject to section 15.17, which requires that entities create and maintain official records. Official records must be kept for time periods as prescribed in an entity's records retention schedule (see Minnesota Statutes, section 138.17). Both meeting minutes and annual reports are listed in the General Records Retention Schedule for Cities as official records that must be kept permanently.</p> <h2>Issue 2:</h2> <p><em>Did the Cass Lake Economic Development Authority Board comply with Minnesota Statutes, Chapter 13D.04, with regard to providing notice for the past four regular Board meetings (January, February, March, and April 2008)?</em></p> <p>As stated above, the EDA Board is subject to Chapter 13D, the Open Meeting Law.</p> <p>Section 13D.04, subdivision 1, prescribes how public bodies must provide notice of their regular meetings: "A schedule of the regular meetings of a public body shall be kept on file at its primary offices." This notice should include the date, time, and location of the meetings.</p> <p>In her opinion request, Ms. Uhrinak wrote that the EDA is to hold regularly meetings on the 1st Thursday of every month. She stated that she had not seen posted notices for the months of January, February, March, or April 2008.</p> <p>In his comments to the Commissioner, Mr. Finn wrote:</p> <p class="opinion_quote">As far as the second question of posting our regular meeting times and dates, again the clerk's [sic] were responsible for this as well. Why were they stopped after December 2007? We did change the day and time of our meetings at that time. I myself talked to [the deputy clerk] about the changes and asked her to be sure they were posted. At this point in time, I never thought I needed to walk around with a recorder and tablet to document my every move. Again, the Clerk's [sic] control not only the bulletin but whether the minutes are maintained as well.</p> <p>Mr. Finn states the EDA Board changed the day and time of its meetings, but he did not state when the Board meets or provide any information to demonstrate the Board has a schedule of its regular meetings on file at its primary offices. The policy behind requiring public bodies to keep meeting notice schedules on file is so that members of the public, such as Ms. Uhrinak, know when and where the public body is meeting. Here, the Commissioner cannot determine whether the EDA Board has complied with the notice requirement in section 13D.04, subdivision 1. If a schedule of the regular Board meetings is not now on file at the EDA primary office, the Board should promptly prepare one and make sure it is on file for public perusal.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Uhrinak raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol start="1" type="1"> <li>The Cass Lake Economic Development Authority did not comply with Minnesota Statutes, Chapter 13, with regard to a request for access to copies of minutes from certain meetings (2003 - February 3, June 2, October 6, November 3, December 1; 2004 - all meetings; 2005 all meetings; 2006 - all meetings; 2007 all meetings; 2008 - January and February) and annual reports from years 2003, 2004, 2005, 2006, and 2007.</li> </ol> <ol start="2" type="1"> <li>The Commissioner cannot determine whether the Cass Lake Economic Development Authority Board complied with Minnesota Statutes, Chapter 13D.04, with regard to providing notice for the past four regular Board meetings (January, February, March, and April 2008).</li> </ol> <p><br /></p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 17, 2008</p> <hr /> </td> </tr> </tbody> </table> </div>2679842022-01-19T19:19:37Z266258266547266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267870" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-30T15:14:43ZDid Carver County comply with Minnesota Statutes, Chapter 13, in its response to a December 12, 2007, request for the cost justification for its plat map pricing?May 30, 2008; Carver County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On April 11, 2008, IPAD received a letter, dated April 9, 2008, from Elizabeth Sobotka, on behalf of her client, Plat Systems Services, a division of Regional MLS of Minnesota, Inc. In her letter, Ms. Sobotka asked the Commissioner to issue an advisory opinion about her client's rights regarding certain data Carver County maintains. IPAD requested clarification, which Ms. Sobotka provided on April 18, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to David Hemze, Carver County Administrator, in response to Ms. Sobotka's request. The purposes of this letter, dated April 23, 2008, were to inform him of Ms. Sobotka's request and to ask him to provide information or support for the County's position. Thomas W. Haines, Assistant County Attorney, responded, in a letter dated May 15, 2008.</p> <p>A summary of the facts follows. In a letter dated December 12, 2007, Plat Systems asked Carver County for "a cost justification" of its $15.00 charge per plat map.</p> <p>In a letter dated January 3, 2008, Mr. Haines responded:</p> <p class="opinion_quote">Carver County maps are a graphical, spatial representation of data compiled from the records of the Carver County Recorder, Carver County Auditor and Carver County Public Works. These maps include parcel boundaries, transportation corridor centerlines and rights-of-way, water boundaries and Auditor Parcel Identification (PID) numbers. Maintenance of the maps is continuous as new parcels are created through the minor-subdivision process and subdivision plats, roads are realigned and right-of-way acquired and vacated, and as water boundaries change over time.</p> <p class="opinion_quote">In the year 2006 the GIS costs totaled $47,379.00 and there were 902 maps sold at $15.00 per map, representing Carver County's expenditure in 2006 at $33,849.00. As of mid December 2007, the costs totaled $61,557.00 and there were 850 maps sold at $15.00 per map, representing Carver County's expenditure at $48,807.00. Please note that these costs only represent base salary; cost of fringe benefits is not included. Based on current and past costs, we believe that the $15.00 fee per map is a minimal expense and are thus in compliance with Minn. Stat. section 13.03 subd. 3 (d).</p> <p>Plat Systems wrote in response to Carver County, in a letter dated March 5, 2008, asking again for a justification of its plat map charge:</p> <p class="opinion_quote">Carver County has provided no information to substantiate a contention that the actual or reasonable cost to provide the plat maps to Plat Systems in electronic form is $15.00 per map. Carver County's response . . . provided limited data regarding its plat maps for the years 2006 and 2007. The data included Carver County's volume of maps sold, its total revenue from those map sales, and its annual cost of maintaining the maps. It appears Carver County justifies the cost to Plat based on its cost to maintain its system; that is not a permissible basis, as the county would maintain the system regardless whether anyone requested the data under the MGDPA. Carver County's response did not provide any explanation of the $15.00 per map fee charged to fulfill a plat map data request. Carver County provided neither an adequate fee schedule, nor any breakdown of the actual reasonable costs to create the information such as labor, mailing or material costs.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Sobotka's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Carver County comply with Minnesota Statutes, Chapter 13, in its response to a December 12, 2007, request for the cost justification for its plat map pricing?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>When an individual requests copies of data of which s/he is not the subject, pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), the government entity may charge the "actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies." In addition, Minnesota Rules Part 1205.0300, subpart 4, provides that an entity, in determining a reasonable fee, shall be guided by the following: cost of materials; cost of labor, any schedule of standard copying charges; any special costs; and mailing costs.</p> <p>Further, according to section 13.03, subdivision 3(e):</p> <p class="opinion_quote">The responsible authority of a government entity that maintains public government data in a computer storage medium shall provide to any person making a request under this section a copy of any public data contained in that medium, in electronic form, if the government entity can reasonably make the copy or have a copy made. . . . . The entity may require the requesting person to pay the actual cost of providing the copy.</p> <p>Mr. Haines did not provide any documentation of the County's actual and reasonable cost to provide an electronic copy of a plat map. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267629" title="04-072" target="_blank">Advisory Opinion 04-072</a> for further discussion.)</p> <p>In addition to charging actual, reasonable costs to provide an electronic copy of data, sometimes a government entity may charge an add-on fee. Pursuant to Minnesota Statutes, section 13.03, subdivision 3(d):</p> <p class="opinion_quote">When a request under this subdivision involves any person's receipt of copies of public government data that has commercial value and is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds by the agency, the responsible authority may charge a reasonable fee for the information in addition to the costs of making, certifying, and compiling the copies. Any fee charged must be clearly demonstrated by the agency to relate to the actual development costs of the information. The responsible authority, upon request of any person, shall provide sufficient documentation to explain and justify the fee being charged.</p> <p>As discussed above, pursuant to section 13.03, when an individual requests copies of data, the government entity may charge certain actual costs related to providing copies of the data. If the data have commercial value, and the request otherwise fulfills the criteria set forth under section 13.03, subdivision 3(d), the entity may charge an additional fee. However, the entity must be able to demonstrate that any such additional fee relates to the actual development costs of the information.</p> <p>In his comments to the Commissioner, Mr. Haines described the County's on-going labor costs to update the data in its system. He did not provide any information about the County's initial development costs for the system, or how much of its initial costs it has recouped through an add-on fee, or how the current add-on fee relates to its development costs. The County must do so in order to meet its obligation to explain and justify an add-on fee under section 13.03, subdivision 3(d).</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267664" title="02-004" target="_blank">Advisory Opinion 02-004</a>, the Commissioner opined:</p> <p class="opinion_quote">It is the Commissioner's opinion that when the Legislature adopted the commercial value add-on fee, it did not intend that a government entity recapture ongoing development/other costs beyond the initial development expenditure. In 1975, [Hennepin] County began the development of the PINS. However, the situation is not one in which the County's initial expenditure for development of the PINS occurred for 25 years (between 1975 and 2000), after which the County allowed the public access to the database. Rather, as the "1991 Property Information System (PINS) Data Base Product Pricing" document states, "...copies of and direct access to this information have been made available to commercial firms for many years." The County, in calculating the development cost for the PINS for the period 1975 through 2000, apparently included ongoing costs. The burden is on the County to "clearly demonstrate" that the add-on fee relates "to the actual development costs of the information." The County has not met that burden. Therefore, the County's charge is not appropriate.</p> <p>Based on Mr. Haines' response, it appears the County calculates its add-on fee using its on-going labor costs to develop and maintain the plat map data, not its initial development costs for the system. Further, the County appears to calculate its costs to maintain its system based upon the number of plat maps it sells. In addition, Mr. Haines did not provide any documentation of the County's actual reasonable cost to provide an electronic copy of a plat map, so it is not evident how much of the $15.00 charge is actual cost, and how much is add-on fee.</p> <p>For these reasons, it is the Commissioner's opinion that the County has not met its obligation to explain and justify its $15.00 per plat map charge.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Sobotka raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Carver County did not comply with Minnesota Statutes, Chapter 13, in its response to a December 12, 2007, request for the cost justification for its plat map pricing.</p> <p><br /></p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 30, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678702665482022-01-19T19:19:35Z266258266297266520266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267199" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-29T15:14:43ZDid the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a March 20, 2008, request for a copy of certain correspondence between the Commission and the Dakota County Court?May 29, 2008; Eagan Charter Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On April 10, 2008, IPAD received an e-mail from Paul Bakken. In his letter, Mr. Bakken asked the Commissioner to issue an advisory opinion regarding his right to have access to certain data from the Eagan Charter Commission. IPAD requested additional information and clarification, which Mr. Bakken provided on April 22, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to Dee Richards, Chair of the Commission, in response to Mr. Bakken's request. The purposes of this letter, dated April 23, 2008, were to inform her of Mr. Bakken's request and to ask her to provide information or support for the Commission's position. Ms. Richards did not respond.</p> <p>A summary of the facts follows. According to Mr. Bakken:</p> <p class="opinion_quote">On or about March 19, 2007, the Chair and Secretary of the Commission sent official correspondence to the Chief Judge of Dakota County. . . . On March 20, 2008, I requested access to this letter under the Minnesota Data Practices Act. The Chair and Secretary have refused this request, claiming that the letter is not a record of the Charter Commission.</p> <p>Mr. Bakken stated that he is a member of the Eagan Charter Commission, but "I specifically made my March 20, 2008 request as a member of the public, pursuant to my rights under the Act."</p> <p>In a March 21, 2008, e-mail to Mr. Bakken, Ms. Richards wrote:</p> <p class="opinion_quote">While Charter Commission files do contain some communication with the court that has occurred [sic] over the years it is by no means a complete record. That complete record of communication is maintained in the official court file.</p> <p class="opinion_quote">The Charter Commission is not required to provide copies of documents that are retained in the official file any more than it is required to provide copies of documents that are retained by the City of Eagan. . . .</p> <p class="opinion_quote">Since the Charter Commission has not received reimbursement of expenses for the past 2 years or so copies maintained by other parties have not been routinely retained. As I previously stated, since the letter to Judge Macklin is official correspondence which will be retained in the official file maintained by the court, I did not retain a copy. I stated I did not retain an electronic version because that is the format you requested. I also did not retain a hard copy. Whether as a member of the Charter Commission or as a member of the public you will need to request a copy of the letter from Judge Macklin.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Bakken's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a March 20, 2008, request for a copy of certain correspondence between the Commission and the Dakota County Court?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>The Commissioner previously addressed issues related to the Commission, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267352" title="04-059" target="_blank">Advisory Opinion 04-059</a>, which Mr. Bakken also requested:</p> <p class="opinion_quote">As stated above, for purposes of Chapter 13, a political subdivision includes a commission created pursuant to law. Minnesota Statutes, Chapter 410, contains the enabling legislation that grants charter commissions their powers and responsibilities. Thus, it is the Commissioner's conclusion that a charter commission, such as the Eagan Charter Commission, is a political subdivision and therefore is subject to the requirements of Chapter 13.</p> <p>Thus, the Commission is a political subdivision, and as such, it is required to maintain official records and provide access to those data as requested. Here, Mr. Bakken asked for a copy of a letter Ms. Richards described as "official correspondence which will be retained in the official file maintained by the court." It is not clear from that statement if the letter is an official record of the Commission. However, the Commission does not maintain a copy. Ms. Richards told Mr. Bakken that he must ask the Dakota County Court for access to it.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267352" title="04-059" target="_blank">04-059</a>, the Commissioner addressed the issue of whether the Commission should be retaining, and providing access to, such data:</p> <p class="opinion_quote">Mr. Felde also advised Mr. Bakken that certain of the data he requested were available at the League of Minnesota Cities, a local library, the District Court in Hastings, and the City of Eagan. Thus, it appears the Commission does not maintain some of the types of data Mr. Bakken requested. If so, the Commission may be in violation of Minnesota Statutes, section 15.17, the Official Records Act. Section 15.17, subdivision 1, states, "All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities." Section 15.17, subdivision 4, states, "Access to records containing government data is governed by sections 13.03 and 138.17." Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13.</p> <p class="opinion_quote">At least some of the data Mr. Bakken requested, e.g., meeting minutes, bylaws, annual reports, and financial reports, appear to document decisions made by the Commission. Such documentation constitutes an official record, must be maintained pursuant to the provisions of Minnesota Statutes, section 138.17, and is subject to the access provisions of Chapter 13.</p> <p>Mr. Bakken submitted a copy of the public access procedures the Commission adopted on January 11, 2006. According to that document, the Commission maintains some of its data, and the Dakota County Court and the City of Eagan maintain various other kinds of data that apparently are official records of the Commission. Data requestors are directed to ask for access at one of the three entities, depending on the specific data.</p> <p>As the Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267352" title="04-059" target="_blank">04-059</a>, the Commission is obligated to maintain and provide access to its official records, and must establish proper procedures to ensure that it meets its obligations under Chapter 13. Ms. Richards stated that the letter is "official correspondence." Thus, it is an official record of the Commission, the Commission should maintain a copy of it, and provide a copy to Mr. Bakken.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Bakken raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>The Eagan Charter Commission did not comply with Minnesota Statutes, Chapter 13, in its response to a March 20, 2008, request for a copy of certain correspondence between the Commission and the Dakota County Court, as the letter is an official record of the Commission, and as such, the Commission should maintain a copy of it. <br /></p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 29, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2671992663732022-04-19T17:40:47Z266258266262266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267484" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-16T15:15:43ZDid Normandale Community College (part of Minnesota State Colleges and Universities) comply with Minnesota Statutes, Chapter 13, in responding to a March 12, 2008, request for access to data?May 16, 2008; Minnesota State Colleges and Universities36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On April 14, 2008, IPAD received a letter dated April 9, 2008, from Anna Mackin, on behalf of Pic-A-Prof. In her letter, Ms. Mackin asked the Commissioner to issue an advisory opinion regarding Pic-A-Prof's access to certain data from Normandale Community College (NCC), which is part of Minnesota State Colleges and Universities (MnSCU).</p> <p>IPAD, on behalf of the Commissioner, wrote to James McCormick, Chancellor of MnSCU, in response to Ms. Mackin's request. The purposes of this letter, dated April 22, 2008, were to inform him of Ms. Mackin's request and to ask him to provide information or support for NCC's position. On May 2, 2008, IPAD received a response, dated same, from Kristine Kaplan, Deputy General Counsel for MnSCU.</p> <p>A summary of the facts as Ms. Mackin provided them is as follows. In a letter dated March 12, 2008, Pic-A-Prof staff wrote to NCC and asked for the following data:</p> <p class="opinion_quote">the grade distributions for all formal courses at [NCC] for the fall 2007 academic semester under [Minnesota Statutes, Chapter 13].The report would include the following data points:</p> <p class="opinion_quote">Course Abbreviation</p> <p class="opinion_quote">Course Number</p> <p class="opinion_quote">Section Number</p> <p class="opinion_quote">Number of A's given by professor</p> <p class="opinion_quote">Number of B's given by professor</p> <p class="opinion_quote">Number of C's given by professor</p> <p class="opinion_quote">Number of D's given by professor</p> <p class="opinion_quote">Number of F's given by professor</p> <p class="opinion_quote">Number of Students that Dropped</p> <p>In an email dated March 17, 2008, NCC responded, "Faculty grading information is, in part, used to evaluate the performance of instructors. Therefore, this information is private personnel data and cannot be released"</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Mackin's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Did Normandale Community College (part of Minnesota State Colleges and Universities) comply with Minnesota Statutes, Chapter 13, in responding to a March 12, 2008, request for access to data?</p> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (See section 13.03, subdivision 1.)</p> <p>Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>Data on individuals is defined in section 13.02, subdivision 5, as government data in which any individual is or can be identified as the subject of the data.</p> <p>(The Commissioner notes that Pic-A-Prof did not include the names of faculty in its data request. However, the data it asked for were from the fall 2007 academic semester, and the names of faculty and the courses they teach are public data at NCC and presumably published in paper and online directories. Thus, by asking for and obtaining the numbers of specific grades given in specific course and section numbers during the fall 2007 semester, Pic-A-Prof would be able to connect the names of the faculty members to the requested data.)</p> <p>In her comments to the Commissioner, Ms. Kaplan wrote:</p> <p class="opinion_quote">Course grade information not only demonstrates individual student achievement, but is also data that is collected by colleges and universities from faculty because it reflects performance of assigned work.</p> </dd> <dd> <p class="opinion_quote">Grade distributions are sometimes used by [NCC] administrators for faculty performance evaluations, and may assist in identifying competency concerns if, for example, the distributions appear to be grossly skewed - or show all one grade. The timeliness, completeness and accuracy of grades are not unimportant administrative matters that may also be indicative of a faculty member's performance and factors in review proceedings, including tenure decisions. Thus, grade distribution information on an individual faculty member fits neatly into the statutory definition of personnel data that is collected on an individual because of his/her employment status.</p> <p class="opinion_quote">To underscore the point that grade distribution information is "about" the faculty member, it is important to understand how that compilation reflects the individual's personal and professional philosophy; grading is not simply a scrivener's record about student performance. Higher education instructional literature identifies two basic grading systems: 1) "criterion-referenced," where grades are based on objective, pre-determined standards of performance; and 2) "norm-referenced," where grades are based on a preset distribution of scores (e.g., the "bell curve" distribution), and there are numerous recognized variations for each.</p> <p class="opinion_quote">Individual faculty members at [NCC] have significant discretion to select a grading system and variation that he/she believes is appropriate for the discipline subject matter and relevant teaching and learning styles. An instructor's selection of grading methodology reveals that individual's considered balancing of all the relevant factors. Grade distribution patterns reflect that instructor's judgment and determination of an appropriate grading system - exactly the kind of information that the Commissioner has previously declared may constitute private personnel data under Minn. Stat. section 13.43, Subd. 4</p> <p>The issue here is the classification of data listing the distribution of grades a faculty member gives for a specific course. Section 13.43 applies and classifies the data only if the faculty member is the subject of the data. If not, the data are presumptively public.</p> <p>In her comments, Ms. Kaplan asserts that NCC collects, creates, and maintains the requested data, at least in part, to evaluate the performance of its faculty members. She stated, "grade distributions are sometimes used for faculty performance evaluations" In addition, in NCC's response to Pic-A-Prof's data request, staff wrote, "Faculty grading information is, in part, used to evaluate the performance of instructors." The Commissioner agrees that when the data in question are collected, created, and maintained to evaluate faculty performance, the faculty members are the subjects of the data and the data appropriately are classified pursuant to section 13.43. Because performance data are not listed as public in subdivision 2 of section 13.43, the data are private.</p> <p>This conclusion is buttressed by a Minnesota Court of Appeals decision involving the classification of certain data St. Paul police officers collected during traffic stops in eight months of the year 2000. (See <em>Star Tribune v. City of St. Paul</em>, 660 N.W. 2d 821.) The Court held, We conclude the police officers are the subjects of the data in question and that the data [were] collected because the police officers were employees of a government entity. As such, the data [are] classified as personnel data and [are] not publicly accessible under [Chapter 13]. <em>Id.</em> at 828. The Commissioner notes that the Court's reasoning in the <em>Star Tribune</em> case appears based on a view that the police officers collected the traffic stop data so the City could evaluate their performance.</p> <p>Thus, the Commissioner opines that to the extent the data in question are collected, created, and maintained as tools for evaluating faculty performance, the data may be protected as private personnel data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Macking raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>To the extent Normandale Community College (NCC), which is part of Minnesota State Colleges and Universities, is collecting, creating, and maintaining the grade distribution data for purposes of evaluating faculty members, NCC complied with Minnesota Statutes, Chapter 13, in denying access to the data requested on March 12, 2008.</p> <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 16, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674842671762671772022-01-19T19:19:35Z266258515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267581" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-16T15:14:43ZIs the unpublished manuscript written by an individual under contract to the Foundation for Minneapolis Parks government data, as that term is defined in Minnesota Statutes, section 13.02, subdivision 7? If the manuscript is government data, what is its classification? If the manuscript is government data and its classification is public data, can the Minneapolis Park and Recreation Board refuse to provide copies of the data because it is copyrighted by a third party, private entity? May 16, 2008; Minneapolis Park and Recreation Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On April 15, 2008, IPAD received a letter dated April 14, 2008, from Ann Walther, an attorney representing the Minneapolis Park and Recreation Board. In her letter, Ms. Walther asked the Commissioner to issue an advisory opinion regarding the classification of certain data.</p> <p>Upon receiving Ms. Walther's opinion request, IPAD, on behalf of the Commissioner, wrote to the Foundation for Minneapolis Parks (Foundation), the organization that submitted the data in question to Park Board Commissioners. This letter was dated April 29, 2008. IPAD did not receive any response.</p> <p>A summary of the facts as provided by Ms. Walther is as follows. In her opinion request, Ms. Walther wrote:</p> <p class="opinion_quote">The [Foundation] is a Minnesota Nonprofit Corporation. It is a 501(c)(3) (charitable) organization.</p> <p class="opinion_quote">In accordance with its purpose, the Foundation contracted with an author to write a book on the history of the Minneapolis park system. The Foundation would hold the copyright to the [book] and would sell the [book] to the public.</p> <p class="opinion_quote">In mid-March, 2008, the [book] was sent to print. As a courtesy to the Park Board, the Foundation mailed a copy of the final [manuscript] to each of the Park Board Commissioners on March 29 for their review prior to the scheduled release of media kits announcing the book's scheduled release to the public.</p> <p class="opinion_quote">At the Park Board's April 2, 2008 regular meeting, several Commissioners mentioned that they had received the [manuscript] and some expressed issues about the [manuscript]. One Commissioner also provided their copy of the [manuscript] to the Mayor of the City of Minneapolis. On April 7, 2008, a citizen requested a copy of the [manuscript].</p> <p class="opinion_quote">Since the April 2, 2008 meeting, the printing of the [book] has been temporarily postponed. The [book] has been, and may still be, edited, and therefore, the [manuscript] is not representative of the final [book].</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Walther's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol type="1" start="1"> <li>Is the unpublished manuscript written by an individual under contract to the Foundation for Minneapolis Parks government data, as that term is defined in Minnesota Statutes, section 13.02, subdivision 7?</li> </ol> <ol type="1" start="2"> <li>If the manuscript is government data, what is its classification?</li> </ol> <ol type="1" start="3"> <li>If the manuscript is government data and its classification is public data, can the Minneapolis Park and Recreation Board refuse to provide copies of the data because it is copyrighted by a third party, private entity?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <br /> <h2>Issue 1:</h2> <p><em>Is the unpublished manuscript written by an individual under contract to the Foundation for Minneapolis Parks government data, as that term is defined in Minnesota Statutes, section 13.02, subdivision 7?</em></p> <p>Minnesota Statutes, section 13.02, subdivision 7, defines government data as "all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use."</p> <p>As described by Ms. Walther, the Foundation is a private, nonprofit corporation. Typically, data collected and maintained by private nonprofit corporations are not subject to Chapter 13, unless there is contract between a government entity and the nonprofit. Here, the Commissioner was not provided with any information to suggest that there is a contract between the Foundation and the Park Board relating to the manuscript or the book. Thus, in the possession of the Foundation, it does not appear that the manuscript or any related data are subject to Chapter 13.</p> <p>However, at the point in time when the Foundation provided copies of the manuscript to the Park Board Commissioners, the manuscript became government data. The Park Board is a government entity and its Commissioners clearly were acting in their official capacities when they reviewed and provided comments, at their meeting, on the manuscripts they had received. Thus, the manuscript in the hands of the Park Board and/or its Commissioners is government data.</p> <h2>Issue 2:</h2> <p><em>If the manuscript is government data, what is its classification?</em></p> <p>Pursuant to Chapter 13, government data are public unless otherwise classified. (See section 13.03, subdivision 1.) The Commissioner is not aware of any provision that classifies the data in the manuscript as anything other than public. The fact that the manuscript still is in draft form does not affect the classification. As the Commissioner wrote in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267671" title="02-026" target="_blank">Advisory Opinion 02-026</a>, "draft versions of public data are public data."</p> <h2>Issue 3:</h2> <p><em>If the manuscript is government data and its classification is public data, can the Minneapolis Park and Recreation Board refuse to provide copies of the data because it is copyrighted by a third party, private entity?</em></p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267641" title="02-012" target="_blank">Advisory Opinion 02-012</a>, the Commissioner addressed the issue of public access to copyrighted business plans that a third party had submitted to a city. The Commissioner, basing her conclusion on <a href="http://www.ag.state.mn.us/office/Opinions/852-19951204.pdf" target="blank">Minnesota Attorney General Opinion 852 (December 4, 1995)</a>, wrote that the city complied with Minnesota Statutes, Chapter 13, by allowing inspection of the plans, but providing copies of the plans only with permission of the copyright holder.</p> <p>Here, Ms. Walther wrote that the Foundation holds the copyright to the manuscript and (later) to the book. Thus, based on <a href="https://www.ag.state.mn.us/office/opinions/852-20060714.pdf" title="Attorney General Opinion 852" target="_blank">Attorney General Opinion 852</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267641" title="02-012" target="_blank">Advisory Opinion 02-012</a>, the Park Board must allow the public to inspect the manuscript but must have permission from the Foundation before providing a copy to the public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Walther raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol type="1" start="1"> <li>The data in the unpublished manuscript in the hands of the Minneapolis Park and Recreation Board and its Commissioners is government data.</li> </ol> <br /> <ol type="1" start="2"> <li>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, the manuscript is public data.</li> </ol> <br /> <ol type="1" start="3"> <li>Based on Minnesota Attorney General Opinion 852 (December 4, 1995), and Advisory Opinion 02-012, the Minneapolis Park and Recreation Board must have permission from the Foundation before providing the public with a copy of the manuscript.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 16, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675812665592667022665602022-01-19T20:54:21Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266441" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-01T15:15:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data Independent School District 719, Prior Lake-Savage, received from an individual who is a former employee and current School Board member?May 1, 2008; School District 719 (Prior Lake-Savage)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 4, 2008, IPAD received a letter, dated same, from Joseph Flynn and Jennifer Earley, attorneys, on behalf of their client, Independent School District 719, Prior Lake-Savage. In their letter, Mr. Flynn and Ms. Earley asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD requested clarification, which they provided, after discussion and revision, on March 13, 2008.</p> <p>Because the outcome of this opinion may affect the rights of the data subject, Mr. Chris Lind, the Commissioner offered him, through his attorney, an opportunity to submit comments. Upon their request, the Commissioner invited Mr. John Borger, on behalf of the <em>Star Tribune</em>, and Mr. Mark Anfinson, on behalf of the <em>Prior Lake American</em>, to submit comments. Mr. Borger did so in a letter dated March 31, 2008; Mr. Anfinson submitted comments during the time that IPAD was clarifying the issue with the District.</p> <p>A summary of the facts follows. Mr. Lind is a former employee of the District. According to Ms. Earley:</p> <p class="opinion_quote">The School District [terminated] Mr. Lind and Mr. Lind did not appeal or otherwise challenge this decision, resulting in a final disposition of disciplinary action. See Minn. Stat. section13.43, subd. 2(a)(5). Therefore, it is the School District's position that Mr. Lind's termination, as well as the specific reasons for his termination and data documenting the basis of the action, would be public pursuant to Minnesota Statutes Section 13.43, subdivision 2(a)(5).</p> <p>After his employment was terminated, Mr. Lind was elected to the ISD 719 School Board, and is a current Board member. Subsequent to his termination, he submitted to the District the data at issue here, consisting of two documents ( One and Two ), which relate to his status both as a former employee and as a School Board member. Ms. Earley stated, [a]t the present time, the School District has classified the enclosed data as not public.</p> <p>(The Commissioner notes that she determined that Mr. Lind likely could be identified by a description of the unique circumstances of his employment, termination, and election to the Board, which are public, and therefore will not use a pseudonym. Thus, the data at issue will be described generally; the opinion will not disclose private data.)</p> <p>Ms. Earley wrote:</p> <p class="opinion_quote">It is the School District's understanding that as a School Board member, data of which Mr. Lind is the subject, may be classified as personnel data pursuant to Minnesota Statutes Section 13.43, depending upon School District policy or practices. <em>See</em> <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267769" title="04-064" target="_blank">[Advisory Opinion] 04-064</a>. To the extent this is relevant to the Commissioner's analysis, the Commissioner should be aware that the School District presently does not have a policy or practice with respect to the classification of data regarding its School Board members. Thus, should the data be determined to relate to Mr. Lind's status as a School Board member, the School District has not taken any affirmative action to classify such data as private.</p> <p class="opinion_quote">To the extent the data relates to Mr. Lind's status as a former employee, it would appear that the data in question would constitute personnel data if the data is '<em>collected</em> because the individual is or was an employee' of the School District. . . . The School District did not take any affirmative action to collect the data. [Emphasis provided.]</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Fylnn and Ms. Earley's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data Independent School District 719, Prior Lake-Savage, received from an individual who is a former employee and current School Board member?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified.</p> <p>Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>According to Mr. Flynn and Ms. Earley, the District took final disciplinary action against Mr. Lind, when it terminated his employment. There is no dispute that the data in question were created subsequent to Mr. Lind's firing. Consequently, those data cannot be data that document the basis of final disciplinary action. The District could not have based its decision about disciplinary action on data that did not exist at the time it made its decision.</p> <p>Upon examination of the data in the first document, it is the Commissioner's determination that the data are about Mr. Lind as a former employee and as such, are classified by section 13.43. The data are not among those listed as public in section 13.43, subdivision 2. Accordingly, the data in document One are private pursuant to section 13.43, subdivision 4.</p> <p>Document Two contains data that are about Mr. Lind as a former employee, and data about him as a School Board member. Ms. Earley stated that the District has no policy regarding data about School Board members, which the Commissioner interprets to mean that the District does not consider them to be employees. (<em>See </em><a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267769" title="04-064" target="_blank">04-064</a>.) Thus, section 13.43 does not apply, and the data are presumptively public.</p> <p>The Commissioner has opined previously that a government entity is in the best position to determine the subject(s) of the data it maintains. However, Ms. Earley asked for specific guidance, which the Commissioner has determined is possible in this case. Document Two, which consists of two short paragraphs, contains the following statements: . . . a parent group has started a petition drive with the intent to force Mr. Lind from the Board. The petition can be found at http://www.ipetitions.com/petition/719cares/. The Commissioner believes those statements relate solely to Mr. Lind's status as a School Board member, and as such are public data.</p> <p>Ms. Earley and Mr. Borger raised a question which the Commissioner feels obliged to address, although it does not affect the outcome of this opinion. The issue is whether data that are not collected by an entity can be personnel data. Pursuant to section 13.43, personnel data are defined as data on individuals <u>collected</u> because the individual is or was an employee . . .</p> <p>Ms. Earley wrote that in 2005, the Minnesota Court of Appeals issued an unpublished opinion in the matter of <em>Stephens v. Board of Regents of the University of Minnesota</em>, Co. No. A04-418, 2005 WL 287488 (Minn. Ct. App. 2005) (unpublished). Ms. Earley quoted from <em>Stephens</em>:</p> <p class="opinion_quote">Personnel data is defined as data 'collected' on an individual based on the person's status as an employee. . . . A public agency collects data by taking some 'affirmative action . . . to gather or assemble the data,' <em>Westrom v. Minn. Dept. of Labor Indus.</em>, 686 N.W. 2d 27, 34 (Minn. 2004), not when it is a mere 'passive recipient' of the information. <em>St. Peter Herald v. City of St. Peter</em>, 496 N.W.2d 812 (Minn. 1993). Because the university was a passive recipient of the letter, the district court properly ruled that the university did not 'collect' this data.</p> <p>Ms. Earley, noting that the <em>Stephens</em> opinion is unpublished and, therefore, not precedential, asked whether the decision impacts the issue before the Commissioner.</p> <p>In his comments to the Commissioner, Mr. Borger stated: [a]lthough <em>Stephens</em> was an unpublished decision and therefore not binding as precedent, its reasoning rested on <em>Westrom</em> and <em>St. Peter Herald</em>, two decisions of the Minnesota Supreme Court that are precedential and that any Advisory Opinion in this matter must follow.</p> <p>The Commissioner respectfully disagrees with Mr. Borger. Government data are classified at section 13.02, subdivision 7, as all data collected, created, received, maintained or disseminated by any government entity. Although personnel data are defined under section 13.43 as data on an individual that are collected by a government entity, that section also describes and classifies many data that are, for example, created (specific reasons for final disciplinary action), or received (complaints or charges against an employee). In addition, government entities create, receive and maintain lots of data about employees, including performance evaluations, specific medical reasons for leave, etc., that have always been treated as private personnel data under section 13.43, subdivision 4. The Commissioner therefore does not find <em>Stephens</em> persuasive; to do so would render meaningless most of section 13.43.</p> <p>In further support of this position, section 645.17, states, (1) the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; [and] (2) the legislature intends the entire statute to be effective and certain.</p> <p>The Legislature may want to clarify the issue by amending the definition of personnel data to include the same language it used to define government data generally, i.e., data collected, created, received, maintained or disseminated by a government entity.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Flynn and Ms. Earley raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, the classification of the data Independent School District 719, Prior Lake-Savage, received from an individual who is a former employee and current School Board member, is as follows: the data in document One are private personnel data, pursuant to section 13.43; the data in document Two are a mixture of private personnel data and public data, as discussed above. <p><br /></p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 1, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2664412664402022-01-19T19:19:34Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266807" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-05-01T15:14:43ZIs the Rock Tenn Community Advisory Panel subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D?May 1, 2008; Rock Tenn Community Advisory Panel36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On March 17, 2008, IPAD received a letter, dated March 14, 2008, from Lorrie Louder on behalf of the Rock Tenn Community Advisory Panel (RCAP). In her letter, Ms. Louder asked the Commissioner to issue an advisory opinion whether RCAP was subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D. Ms. Louder submitted the $200.00 fee required by section 13.072. In a letter to Ms. Louder dated March 20, 2008, IPAD requested additional information and clarification. Clarification was provided by Ms. Louder in a letter dated April 14, 2008, and received by IPAD on April 17, 2008.</p> <p>A summary of the facts as presented by Ms. Louder is as follows.</p> <p>In 2007, the Saint Paul Port Authority (SPPA) was provided with a one-time grant for a study related to a steam and electrical energy facility for Rock Tenn, a paper recycling facility in Saint Paul. As part of the grant, SPPA is required to convene a citizen's advisory committee to advise on the scope of the study. This citizen's advisory committee is composed of members recommended by four different district councils in Saint Paul and must meet regularly.</p> <p>According to Ms. Louder, this committee is known as RCAP and has developed a consensus process using a facilitator so there is no chair of RCAP.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Louder's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the Rock Tenn Community Advisory Panel subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>To assist in the analysis of whether RCAP is subject to the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D, some background is helpful.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences; (2) to assure the public's right to be informed; and (3) to afford the public an opportunity to present its views to the [public body]. <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); see <em>St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies).</p> <p><em>Prior Lake American</em> at 735. With this background and the Court's instruction to construe the law in favor of public access, the next step is to review the issue presented by RCAP.</p> <p>Minnesota Statutes, section 13D.01 lists the government organizations that are subject to the OML. These government organizations are referred to as public bodies. Subdivision 1 of this section states, in pertinent part:</p> <p class="opinion_quote">All meetings, including executive sessions, must be open to the public: . . .</p> <p class="opinion_quote">(c) of any</p> <p class="opinion_quote">(1) committee, . . .</p> <p class="opinion_quote">of a public body;</p> <p>According to 2007 Session Laws, Chapter 57, Article 2, Section 3, RCAP is a committee operating under the auspices of the SPPA. The study must do the following:</p> <p class="opinion_quote">(1) assess the economic and technical feasibility of various fuel types to power the plant; <br /> (2) provide a full description and analysis of each fuel type and their respective economic and noneconomic impacts; <br /> (3) provide a full description and analysis of each fuel type and their respective environmental emissions, including carbon dioxide, and the cost of controlling those emissions that affect human health; <br /> (4) describe public subsidies related to the production and use of each fuel type; <br /> (5) describe potential energy efficiency improvement that can be made to the paper recycling operations and subsidies available for each improvement; and <br /> (6) evaluate additional uses for the steam and electricity produced at the facility and the cost of infrastructure needed to implement the additional uses.</p> <p>In addition, the Legislature also gave RCAP the authority to issue recommendations on these study topics that are separate from those presented by SPPA.</p> <p>All of these functions are actions taken on behalf of citizens who will be impacted by the decisions that are made about providing energy to the Rock Tenn recycling operation. As stated by the Minnesota Supreme Court in the <em>Prior Lake American</em> case, these are the types of discussions that should occur in public and any decision should be made in public.</p> <p>The next question then is whether the RCAP is a public body and so subject to the OML. The SPPA is a public corporation created in 1929. According to Minnesota Statutes, section 465.719, subdivision 9, public corporations created before May 31, 1997, cannot be exempted from the OML. As a committee of a public body, RCAP is subject to the OML.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Louder raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Rock Tenn Community Advisory Panel is subject to the requirements of the Open Meeting Law, Minnesota Statutes, Chapter 13D. <p><br /></p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 1, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2668072665722022-01-19T19:19:34Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267587" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-04-24T15:14:43ZDid the Stearns County Attorney comply with Minnesota Statutes, Chapter 13, in responding to a request for the following data related to a shooting that occurred on January 25, 2008: the names, dates of birth and city of residence of witnesses to the fatal shooting; the name, date of birth and city of residence of the alleged shooter; a brief reconstruction of the events associated with the fatal shooting; the address where the fatal shooting took place; and the transcript of the 911 call reporting the shooting? April 24, 2008; Stearns County Attorney36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 13, 2008, IPAD received a letter, dated same, from Mark Anfinson, an attorney representing the <em>St. Cloud Times</em>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's access to certain data from the Stearns County Sheriff. Mr. Anfinson subsequently, on February 28, 2008, revised his request so that the involved entity was the Stearns County Attorney. Mr. Anfinson submitted additional clarification on March 5, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to Janelle Kendall, Stearns County Attorney, in response to Mr. Anfinson's request. The purposes of this letter, dated March 11, 2008, were to inform her of Mr. Anfinson's request and to ask her to provide information or support for her position. On March 24, 2008, IPAD received comments from Marcus Miller, Chief of the Civil Division of the Stearns County Attorney's office.</p> <p>A summary of the facts as Mr. Anfinson presented them is as follows. In his opinion request, Mr. Anfinson wrote:</p> <p class="opinion_quote">On January 25, 2008, a young Royalton man was shot to death at a private home. In response to media requests, law enforcement authorities provided some of the information specified in Minn. Stat. section 13.82, subd. 6 (response or incident data), and Stearns County Sheriff John Sanner supplied additional information.</p> <p class="opinion_quote">In its early stages of coverage, the <em>Times</em> formally requested all response and incident data related to the shooting, as well as a transcript of the 911 call reporting it. However, Stearns County Attorney Janelle Kendall refused to furnish some of the information listed in section 13.82, subd. 6.</p> <p class="opinion_quote">After further exchanges, the <em>Times</em> received a letter (dated January 8, 2008) from Marcus Miller, chief of the civil division in the County Attorney's office. A copy is enclosed.</p> <p>In his February 8, 2008, letter, Mr. Miller wrote:</p> <p class="opinion_quote">You have requested the following:</p> <p class="opinion_quote">- The names, dates of birth and city of residence of witnesses to a fatal shooting.</p> <p class="opinion_quote">- The name, date of birth and city of residence of the alleged shooter.</p> <p class="opinion_quote">- A brief reconstruction of the events associated with the fatal shooting.</p> <p class="opinion_quote">- The address where the fatal shooting took place.</p> <p class="opinion_quote">- Transcript of the 911 call reporting the shooting.</p> <p class="opinion_quote">I have confirmed that a criminal investigation into these matters is active and ongoing. At this time, your request for the aforementioned active criminal investigative data is denied in whole. Minnesota Statutes section 13.03, subd. 3(f) provides that upon the request of any person denied access to data, the responsible authority. . . shall certify in writing that the request has been denied and cite the specific statutory section. . . upon which the denial [is] based. Your request is denied pursuant to Minn. Stat. section 13.82, subds. 2, 7, 14, and 17, as well as Minn. Stat. section 13.83, subd. 4.</p> <p>In his opinion request, Mr. Anfinson disagreed with Mr. Miller's response.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Stearns County Attorney comply with Minnesota Statutes, Chapter 13, in responding to a request for the following data related to a shooting that occurred on January 25, 2008: the names, dates of birth and city of residence of witnesses to the fatal shooting; the name, date of birth and city of residence of the alleged shooter; a brief reconstruction of the events associated with the fatal shooting; the address where the fatal shooting took place; and the transcript of the 911 call reporting the shooting?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified.</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events.</p> <p>The issue here is the classification of the specific data the newspaper requested. The Commissioner first will address the classification of data related to the witnesses of the shooting. The names and addresses of witnesses are response or incident data pursuant to section 13.82, subdivision 6(g). Response or incident data always are public even if there is an active criminal investigation relating to the incident. However, a government entity must withhold these data if the identities of the individuals qualify for protection under section 13.82, subdivision 17. Mr. Miller argued that the County Attorney could withhold the response or incident data regarding the witnesses based on section 13.82, subdivision 17. Clause (d) of section 13.82, subdivision 17, states that a law enforcement agency shall withhold identifying data about witnesses when:</p> <p class="opinion_quote">access to the data would reveal the identity of a victim or witness to a crime if the victim or witness specifically requests not to be identified publicly, unless the agency reasonably determines that revealing the identity of the victim or witness would not threaten the personal safety of the individual.</p> <p>Section 13.82, subdivision 17 further states, Law enforcement agencies shall establish procedures to acquire the data and make the decisions described in clauses(d)</p> <p>Mr. Miller did not provide information to the Commissioner suggesting that any of the witnesses had asked to have their names withheld because they feared for their safety. Nor did Mr. Miller discuss whether the County Attorney has procedures in place to document how they make their decisions when a witness is concerned about his/her personal safety. Without additional factual information, the Commissioner is unable to determine whether it was appropriate for the County Attorney to withhold data based on section 13.82, subdivision 17.</p> <p>Mr. Miller also cited section 13.82, subdivision 14, as a basis upon which to deny the newspaper access to response or incident data about the witnesses to the shooting. Subdivision 14 states:</p> <p class="opinion_quote">A law enforcement agency may temporarily withhold response or incident data from public access if the agency reasonably believes that public access would be likely to endanger the physical safety of an individual or cause a perpetrator to flee, evade detection or destroy evidence. In such instances, the agency shall, upon the request of any person, provide a statement which explains the necessity for its action. Any person may apply to a district court for an order requiring the agency to release the data being withheld.</p> <p>Generally, a government entity is in the best position to determine whether this provision applies. When the County Attorney initially cited this section, the newspaper had the right to ask the county for an explanation; the Commissioner does not know if the newspaper did this.</p> <p>Although it may have been appropriate for the County Attorney initially to withhold the names and addresses of witnesses, it does not seem appropriate for the County Attorney to continue to withhold data pursuant to section 13.82, subdivision 14 after an individual was charged in the incident. The County Attorney appears to take the position that her authority to temporarily withhold the data to prevent, among other things, the destruction of evidence, can continue throughout the criminal prosecution of the individual charged with the shooting unless ordered by a court to release it. The Commissioner does not agree with that interpretation of subdivision 14. Once an individual is charged with a crime, there are other mechanisms the County Attorney can use to address the protection of, or tampering with, victims, witnesses, or evidence.</p> <p>The newspaper also requested the birth dates of the witnesses. These data are not listed in section 13.82, subdivision 6, as response or incident data. However, if the County Attorney maintains these data, they are subject to the general presumption in Chapter 13 and are public unless otherwise classified.</p> <p>The Commissioner next will address the classification of the name, date of birth, and city of residence of the shooter. The Commissioner discussed a similar issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267457" title="00-078" target="_blank">Advisory Opinion 00-078</a>;</p> <p class="opinion_quote">It is reasonable to assume that witnesses to possible crimes are frequently also suspects. However, as discussed above, arrest, request for service, and response or incident data, including identities of witnesses, are always public. Subdivision 7 provides: [e]xcept for the data defined in subdivisions 2, 3, and 6, investigative data . . . is confidential or protected nonpublic while the investigation is active. Accordingly, the identity of an individual, <u>as a witness</u>, is public under subdivision 6. A law enforcement agency is not obligated to disclose to the public that the individual is also a suspect.</p> <p>[Emphasis provided.]</p> <p>Thus, if the individual who eventually was charged initially was identified by law enforcement as a witness, the classification of his name, date of birth, and city of residence is the same as the Commissioner discussed above. However, if this individual immediately was identified as the shooter, the data about him are public pursuant to the general presumption, and could be protected under section 13.82, subdivision 7 (active criminal investigative data). At the point the shooter was arrested and charged, his name, age, and last known address became public pursuant to section 13.82, subdivision 2(j) (arrest data).</p> <p>The Commissioner next will address the newspaper's request for access to a brief reconstruction of the events associated with the fatal shooting. These data are response or incident data listed in section 13.82, subdivision 6(f), and are public. It is possible that the County Attorney could exercise her discretion under section 13.82, subdivision 14, and withhold these data, but only <em>temporarily</em>. For more information, see the discussion above related to the classification of the witness data.</p> <p>The Commissioner next will address the newspaper's request for the address where the fatal shooting took place. Section 13.82, subdivision 6(a), lists as public the date, time, and place of action, whereas the newspaper asked for the address where the shooting occurred. The County Attorney responded by providing the name of the avenue in the township where the shooting took place. (This response was dated February 28, 2008, the same day the County Attorney released its statement naming the person who had been charged in the incident.) Mr. Anfinson argued, In our view, where an action occurs at a location having a specific address, that address must be provided, unless an exception otherwise found in section 13.82 applies. The Commissioner agrees; as the County Attorney does not appear to have provided a basis upon which to withhold the address, it should have been provided to the newspaper.</p> <p>Finally, the Commissioner will address the classification of the transcript of the 911 call reporting the shooting. Section 13.82, subdivision 4, states, a written transcript of the audio recording [of a call placed to a 911 system for the purpose of requesting service from a law enforcement agency] is public, unless it reveals the identity of an individual otherwise protected under subdivision 17.</p> <p>Section 13.82, subdivision 17 (f), states that a law enforcement agency shall withhold public access:</p> <p class="opinion_quote">when access to the data would reveal the identity of a person who placed a call to a 911 system or the identity or telephone number of a service subscriber whose phone is used to place a call to the 911 system and: (1) the agency determines that revealing the identity may threaten the personal safety or property of any person; or (2) the object of the call is to receive help in a mental health emergency. For the purposes of this paragraph, a voice recording of a call placed to the 911 system is deemed to reveal the identity of the caller.</p> <p>In his comments to the Commissioner, Mr. Miller wrote:</p> <p class="opinion_quote">With respect to the 911 phone call, the [newspaper] has never requested that a transcript be prepared and has made no attempt to arrange payment for the cost of preparing such transcript, as required by Minn. Stat. 13.82, subd. 4. More importantly, even if the [newspaper] has requested preparation of a transcript and arranged payment for the costs, the transcript is expressly subject to the protections of subdivision 17. Likewise, to the extent that it contains [response or incident data], the transcript is subject to the protections afforded in subdivision 14 as well.</p> <p>Mr. Miller did not provide any information to explain how the personal safety or property of the caller or the service subscriber would be compromised if the County Attorney released the 911 call transcript. Thus, the Commissioner has no basis upon which to agree with the County Attorney's position that the data were appropriately withheld from the newspaper.</p> <p>Mr. Miller also asserted that the County Attorney can withhold the transcript of the 911 call pursuant to section 13.82, subdivision 14. As discussed above, this provision permits law enforcement agencies to protect response or incident data from public access. Response or incident data are defined under section 13.82, subdivision 6, as data created or collected by a law enforcement agency which document the agency's response to a request for service or which describe actions taken by the agency on its own initiative. The transcript of a call to a 911 system is request for service data, not response or incident data. The Commissioner disagrees with Mr. Miller; the County Attorney may not withhold the 911 transcript based on section 13.82, subdivision 14.</p> <p>Following are two additional comments. In his comments to the Commissioner, Mr. Miller cited 13.83, subdivision 4, as a basis upon which the County Attorney can withhold data. (Section 13.83 classifies medical examiner data.) He wrote:</p> <p class="opinion_quote">the Stearns County Sheriff's Department is also the Office of the Medical Examiner. Medical examiner data provided to law enforcement agencies remain medical examiner data. While the scope of the request is unclear in this regard, any accurate brief reconstruction of the events associated with the incident would include the cause of death, as well as the findings and essential details of the autopsy.</p> <p>[Emphasis provided.]</p> <p>Pursuant to section 13.83, subdivision 1, medical examiner data are data relating to deceased individuals and the manner and circumstances of their death which are created, collected, used or maintained by a county coroner or medical examiner in the fulfillment of official duties pursuant to Chapter 390. Section 13.83, subdivision 4, classifies data collected by a county coroner or medical examiner which are part of an active investigation mandated by Chapter 390. Generally, active investigative data are confidential/protected nonpublic and when the investigation is no longer active, the data revert to private/nonpublic.</p> <p>Mr. Miller did not explain how the data at issue in this opinion are medical examiner data as opposed to law enforcement data. Even if the two functions are being performed out of the same office, the Medical Examiner's responsibilities are different than those of the Sheriff. For these reasons as well as the Legislature's clear direction that certain response or incident data (as well as arrest and request for service data) always are public regardless of whether there is an active criminal investigation, the Commissioner cannot agree that the data in question are classified pursuant to section 13.83.</p> <p>Finally, it is important to keep in mind that pursuant to section 13.82, subdivision 7, any data the County Attorney was protecting as part of an active criminal investigation become public once those data are presented in court.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <p>Pursuant to section 13.82, subdivision 14, the Stearns County Attorney could have temporarily withheld from public access the names, dates of birth and city of residence of witnesses to the fatal shooting. However, as soon as an individual was charged in the incident, the County Attorney should have released the data to the newspaper, unless the identities of the witnesses qualified for protection under section 13. 82, subdivision 17.</p> <p>Regarding the request for the name, date of birth and city of residence of the alleged shooter, the data are not request for service data, but are public pursuant to the general presumption, and could be protected under section 13.82, subdivision 7 (active criminal investigative data). However, as soon as the County Attorney charged an individual in the shooting, his name, age, and last known address became public under section 13.82, subdivision 2(j) (arrest data).</p> <p>Pursuant to section 13.82, subdivision 14, the Stearns County Attorney could have temporarily withheld from public access the brief reconstruction of the events associated with the fatal shooting. However, as soon as an individual was charged in the incident, the County Attorney should have released the data to the newspaper.</p> <p>Pursuant to section 13.82, subdivision 14, the Stearns County Attorney could have temporarily withheld from public access the address where the fatal shooting took place. However, as soon as an individual was charged in the incident, the County Attorney should have released the data to the newspaper.</p> <p>Regarding the request for the transcript of the 911 call reporting the shooting, the data are public, unless they reveal the identity of an individual otherwise protected under section 13.82, subdivision 17. <br /></p> <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 24, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675872664612667222667232667242667252022-01-19T19:19:34Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267863" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-04-16T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the names of Minnesota Department of Public Safety (DPS) employees who are subject to discipline that is not yet final after DPS provided required notice to the public of a data breach? April 16, 2008; Minnesota Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <p><strong>Note: Due to a legislative change in 2014, Minnesota Statutes, section 13.055, now applies to all government entities.</strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On February 6, 2008, IPAD received a letter dated same, from E. Joseph Newton, General Counsel for the Minnesota Department of Public Safety (DPS). In his letter, Mr. Newton asked the Commissioner to issue an advisory opinion regarding the classification of certain data DPS maintains.</p> <p>Upon receiving Mr. Newton's opinion request, IPAD, on behalf of the Commissioner, wrote to the DPS employees whose data are at issue in this opinion. The letters invited the employees to submit comments because their rights could be affected by the outcome of the opinion. The Commissioner did not receive any responses. A summary of the facts as provided by Mr. Newton is as follows. In the opinion request, he wrote:</p> <p class="opinion_quote">[DPS] has received two separate requests for certain data related to, an investigation and data breach. Specifically, DPS undertook an audit of use of drivers license data and application data maintained on Minnesota residents applying for a driver's license. The data is collected under Minnesota Statutes Chapter 171 and is classified as private data under 18 U.S.C. section2721. The audit uncovered misuse by two DPS employees. DPS complied with Minnesota law relative to unauthorized use of the data. See Minn. Stat. section13.055. As required, under law, DPS notified affected individuals that certain data had been accessed, identified the specific data. DPS also issued a press release with the same information.</p> <p class="opinion_quote">DPS also sought to discipline the employees and as of the date of this letter the discipline is not considered final under Minn. Stat. section13.43, subd. 2</p> <p class="opinion_quote">Two individuals requested the names of the employees subject to the investigation and documents in reference to them.</p> <p class="opinion_quote">DPS takes the position that the names are private data. On the one hand, DPS is required to notify individuals of a data breach. By its very nature, the notice must go into some detail for it to be meaningful.</p> <p class="opinion_quote">DPS is also required to maintain certain personnel data as private under the law.</p> <p class="opinion_quote">Members of the public should not be able to use the statutorily mandated data to receive what would otherwise be private data under a separate statute. To do so eviscerates the private rights of state employees, mandated by Minn. Stat. section13.43.</p> <p>[Emphasis provided.]</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Newton's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the names of Minnesota Department of Public Safety (DPS) employees who are subject to discipline that is not yet final after DPS provided required notice to the public of a data breach?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public except as otherwise classified.</p> <p>Section 13.43 classifies data on individuals who are current or former employees. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>In a situation in which someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge.</p> <p>If a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following additional data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>The Commissioner previously has described the legislative policy behind the language in section 13.43:</p> <p class="opinion_quote">The current language balances two strongly competing interests. The public has an important interest in knowing how government entities are handling and have handled complaints and charges that are made against public employees. On the other hand, public employees have strong reputational and other interests in not having unsubstantiated and potentially false complaints or charges made against them disclosed to the public. The legislature has achieved that balance by saying that certain data about complaints or charges against public employees will always be public but certain other data, and particular details concerning a given complaint or charge against a public employee, will not become public unless and until there is a final disposition of a disciplinary action against the employee.</p> <p>(See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267528" title="94-042" target="_blank">Advisory Opinion 94-042</a>.)</p> <p>Mr. Newton stated that a final disposition has not occurred. Typically, at this point in an investigation into a complaint, the following data would be public: the employee's name connected with fact that a complaint exists against that employee and the status of complaint.</p> <p>However, the situation here is complicated because the complaint against the employees is an unauthorized use of data:</p> <p class="opinion_quote">A state agency that collects, creates, receives, maintains, or disseminates private or confidential data on individuals must disclose any breach of the security of the data following discovery or notification of the breach. Notification must be made to any individual who is the subject of the data and whose private or confidential data was, or is reasonably believed to have been, acquired by an unauthorized person.</p> <p class="opinion_quote">[Emphasis added.]</p> <p>(See section 13.055, subdivision 2.)</p> <p>DPS was required, under section 13.055, to provide notification of the security breach. The information DPS provided as part of that process, in effect, disclosed the nature of the complaint against the employees. If DPS now were to release publicly the names of the employees, the employees' rights under section 13.43 would be violated because there has not been a final disposition of discipline in the matter.</p> <p>Minnesota Statutes, section 645.26, discusses how to interpret statutory provisions that are in conflict. Subdivision 1 of section 645.26 states that when the conflict is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session. Here, section 13.055 required disclosure of the nature of the complaint prior to a final disposition having occurred at DPS, which, when the name of the employee is public, is in direct conflict with the classification of data in section 13.43.</p> <p>The language in section 13.055 was enacted during the 2005 Legislative Session. The language relating to complaints/disciplinary action was enacted prior to 2005. Based on the above analysis, the Commissioner concludes that because DPS has released the nature of the complaint, it cannot, at this time, release the names of the employees. DPS can release the names if a final disposition occurs.</p> <p>Two final notes are appropriate. First, section 13.055 applies only to state agencies. Although local level governments voluntarily may wish to notify data subjects of any data breaches that occur, they need to consider the conclusions reached in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267860" title="98-024" target="_blank">98-024</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267660" title="01-063" target="_blank">01-063</a>, and <em>Navarre v. South Washington County Schools</em>, 652 N.W.2d 9 (Minn. 2002): section 13.43 authorizes only the disclosure of existence and status of complaints prior to a final disposition of discipline; the type of complaint cannot be disclosed. In the situation currently before the Commissioner, DPS, as a state agency, was required to provide notice of the data breach.</p> <p>Second, the issue DPS raised is one that deserves legislative discussion, especially given the difference in outcome depending upon whether the entity is part of state or local government.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Newton raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes sections 13.055 and 13.43, the names of Minnesota Department of Public Safety (DPS) employees are private unless there is a final disposition pursuant to section 13.43, subdivision 2(b).</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 16, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678632664802669172022-01-19T19:19:34Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266860" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-04-11T15:14:43ZDid the City of Duluth comply with Minnesota Statutes, Chapter 13, when it denied public access to the following data: the names of all retirees and dependents who currently receive "free" retiree health care from their employment with the City; and the total value and nature of health care benefits each person has received?April 11, 2008; City of Duluth36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 12, 2008, IPAD received a letter from Mark R. Anfinson, an attorney, on behalf of his client, the <em>Duluth News Tribune</em>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data from the City of Duluth. IPAD requested clarification, which Mr. Anfinson provided on February 22, 2008.</p> <p>IPAD, on behalf of the Commissioner, wrote to John Hall, Chief Administrative Officer for the City of Duluth, in response to Mr. Anfinson's request. The purposes of this letter, dated February 29, 2008, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. M. Alison Lutterman, Deputy City Attorney, responded, in a letter dated March 6, 20008. Mr. Anfinson and Ms. Lutterman enclosed copies of related correspondence.</p> <p>A summary of the facts follows. In a letter dated November 5, 2007, Brandon Stahl, a <em>News Tribune</em> reporter, asked to inspect the following data:</p> <p class="opinion_quote">* The names of all retirees and dependants [sic] who currently receive free retiree health care from their employment with the City of Duluth.</p> <p class="opinion_quote">* The total value and nature of health care benefits each person has received.</p> <p>In a letter dated November 20, 2007, the City responded that because the requested data are not included in the data listed as public under Minnesota Statutes, section 13.43, subdivision 2(a)(1), the data are private according to subdivision 4.</p> <p>In a letter dated December 4, 2007, Mr. Stahl asked the City for an explanation of its denial, and repeated his request for the data described above.</p> <p>In a letter dated December 28, 2007, Ms. Lutterman wrote to Mr. Stahl:</p> <p class="opinion_quote">I reiterate the City's earlier position. While the names of former employees may be public, the fact that they retired is not listed as data that is public [citation omitted.] Therefore, to give you the names of former City employees who receive retiree benefits would disclose whether a former employee retired. The City can provide the types and value of benefits a retiree receives but cannot disclose the name associated with that information. For example, the City can indicate the public data for Employee No. 1, but cannot provide the name of that employee. In addition, the statute does not identify dependent data as public; therefore, the names of dependents who receive retiree benefits cannot be disclosed.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Duluth comply with Minnesota Statutes, Chapter 13, when it denied public access to the following data: the names of all retirees and dependents who currently receive free retiree health care from their employment with the City; and the total value and nature of health care benefits each person has received?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private, and also states [d]ata pertaining to an employee's dependents are private data on individuals.</p> <p>Among the data on current and former employees that are classified as public under section 13.43, subdivision 2(a)(1) are: name; actual gross salary; salary range; contract fees; actual gross pension; the value and nature of employer paid fringe benefits; and the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary.</p> <p>In his comments to the Commissioner, Mr. Anfinson wrote:</p> <p class="opinion_quote">Our position can be simply stated. Minn. Stat. section13.43, subd. 2(a) appears quite clearly to classify as public certain specified personnel data on current and former employees. Among the data expressly classified as public in paragraph (1) are the employee's name <em>and</em> the value and nature of employer-paid fringe benefits. Given this language, we do not understand how the City Attorney's office can conclude that if the City provides the types and value of benefits a retiree receives, it may not identify the retiree.</p> <p class="opinion_quote">Correspondingly, it seems to us that since the health benefits paid for dependents of City retirees can be claimed only because the retiree was once an employee of the City, such data are also covered by the portion of paragraph (1) referring to the value and nature of employer-paid fringe benefits. In other words, health coverage for dependents of retirees is an employer-paid fringe benefit as well. [Emphasis provided.]</p> <p>In her comments to the Commissioner, Ms. Lutterman wrote:</p> <p class="opinion_quote">The City does not dispute that the names of former employees and the nature and value of fringe benefits are public data [citation omitted.] However, the names of the employees in the context of the request is [sic] not public. This is so because by identifying the names of retired employees, the City is providing more data than just a name. The City is also providing the reason for the employee's termination of employment. The reason for an employee's termination of employment is not public unless the termination is a result of final disciplinary action, in which case the data would be public [citation omitted.]</p> <p class="opinion_quote">The City's position that the classification of the data needs to be informed by the context of the request is supported by the strict construction given the statute by the [Minnesota] Supreme Court in [<em>Navarre v South Washington County School District</em>, 652 N.W.2d 9 (Minn. 2002)], and by Commissioner [of Administration] opinions. . . .</p> <p>Ms. Lutterman cited Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267479" title="07-004" target="_blank">07-004</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/266974" title="07-001" target="_blank">07-001</a> in support of the City's position. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267479" title="07-004" target="_blank">07-004</a>, the Commissioner opined:</p> <p class="opinion_quote">Section 13.43 provides that certain data on individuals are public and some are private. An employee's name is one of the types of data that is listed as public. However, the fact that certain personnel data are private means there are situations in which an employee's name cannot be released because pairing the data with the employee's name would release data about that employee that are classified as private by section 13.43.</p> <p>Ms. Lutterman wrote, [h]ere, the City was faced with a similar context problem. . . . By providing a list of the names of former employees who are retired, the City would make public, data that is not public; namely, the non-disciplinary reason for the employment termination. She further stated, [t]he City does not dispute that the value and nature of health care benefits received by former employees of the City are public personnel data. However, [Mr.] Stahl's request would have required the City to identify each individual retiree and then connect the fringe benefit data to that retiree. As discussed above, the employee's identity as a retiree is not public data. . . .</p> <p>As to the data on dependents Mr. Stahl requested, Ms. Lutterman wrote that under section 13.43, subdivision 4, data pertaining to an employee's dependents are private data:</p> <p class="opinion_quote">The City assumed in its response to [Mr.] Stahl that health care benefits received by a dependent of a former employee as a result of the former employment relationship are fringe benefits received by the former employee. Therefore, the nature and value of the benefit is public [citation omitted.] However, the context of the request asked the City to connect an identity to the benefit. If the City provided the data as requested, the City would have disclosed private data on individuals. The private data are (1) the fact that a former employee retired, (2) the fact that the retiree has dependents, and (3) the identity of the dependents.</p> <p>The Commissioner concurs. The reason a former employee left City employment (absent final disciplinary action) is not public. Mr. Stahl did not ask for otherwise public data on <u>former employees</u>; he asked for identifying data about <u>retirees</u> and their dependents. The City would have improperly released private data had it complied with his request as stated. However, if Mr. Stahl, or anyone, were to ask for the names, value and nature of fringe benefits, and any other public data on former employees, the City could provide access to those data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Duluth complied with Minnesota Statutes, Chapter 13, when it denied public access to the following data: the names of all retirees and dependents who currently receive free retiree health care from their employment with the City; and the total value and nature of health care benefits each person has received. <p><br /></p> <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 11, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2668602668592022-01-19T19:19:32Z266258266297514332266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267316" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-04-01T15:14:43ZDid Blue Earth County comply with Minnesota Statutes, Chapter 13, in its response to a data request for all data relating to a complaint? April 1, 2008; Blue Earth County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 13, 2008, IPAD received a letter dated February 11, 2008, from Paul Grabitske, an attorney on behalf of his client. In his letter, Mr. Grabitske asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data from Blue Earth County.</p> <p>IPAD, on behalf of the Commissioner, wrote to Dennis McCoy, Blue Earth County Administrator, in response to Mr. Grabitske's request. The purposes of this letter, dated February 21, 2008, were to inform him of Mr. Grabitske's request and to ask him to provide information or support for the County's position. On February 28, 2008, IPAD received a response, dated February 26, 2008, from Ross Arneson, Blue Earth County Attorney.</p> <p>A summary of the facts as provided by Mr. Grabitske is as follows.</p> <p>In a letter dated December 17, 2007, County staff wrote to Mr. Grabitske's client. County staff referenced a complaint made against the client regarding alleged inappropriate activity on the client's property and informed the client that the County had determined current activities were not in violation of the County's Code of Ordinances.</p> <p>In a letter dated December 19, 2007, Mr. Grabitske wrote to the County and asked that his client be allowed to inspect all data relating to the complaint, including all request for service data and criminal investigative data. (Request for service and criminal investigative data are law enforcement data classified pursuant to section 13.82.)</p> <p>In a letter dated December 27, 2007, Mr. Arneson responded to Mr. Grabitske by stating, The information you request is classified as confidential data under Section 13.44 of [Minnesota Statutes, Chapter 13].</p> <p>In a letter dated January 7, 2008, Mr. Grabitske wrote to Mr. Arneson, I do not necessarily agree with your analysis regarding the data concerning the recent complaint. The statute only declares the identity of the complaining party to be confidential. It does not protect all data.</p> <p>In a February 7, 2008, email, Mr. Arneson wrote to Mr. Grabitske, In my opinion the county cannot release any information about the complaint absent a court order, as release of any information about the complaint could lead to identification of the complainant.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Grabitske's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Blue Earth County comply with Minnesota Statutes, Chapter 13, in its response to a data request for all data relating to a complaint?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Section 13.44, subdivision 1, classifies the following data as confidential: the identities of individuals who register complaints with government entities concerning violations of state laws or local ordinances concerning the use of real property.</p> <p>Section 13.02, subdivision 5, defines data on individuals as government data in which any individual is or can be the 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.</p> <p>In his comments to the Commissioner, Mr. Arneson wrote:</p> <p class="opinion_quote">The identity of complainants is classified as confidential under Minnesota Statute 13.44.</p> <p class="opinion_quote">Mr. Grabitske is seeking to circumvent that statute by requesting enough detail so that he can ultimately overcome the statute and identify the identity of the complainant. If Mr. Grabitske's argument that such information is public is accepted, it makes the provision providing that complainants can make complaints confidentially absurd.</p> <p>Mr. Arneson asserts that the County cannot release any data about the complaint because to do so would identify the complainant. It is correct that pursuant to section 13.44 the County cannot release any data that would identify the complainant. This is also the case for any data that are law enforcement data (see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267380" title="00-036" target="_blank">Advisory Opinion 00-036</a>). Thus, if all of the data in question are those from which the complainant can be identified, they cannot be released.</p> <p>The Commissioner adds the following. As section 13.44 is not a blanket-type classification, it is incumbent upon the County to make sure it has reviewed all the data in question and is withholding only those from which the complainant can be identified.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Grabitske raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Blue Earth County cannot release any complaint-related data that identify the individual who made a complaint. If all data related to the complaint identify the complainant, Blue Earth County complied with Minnesota Statutes, Chapter 13, in responding to the data request in question. <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 1, 2008</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673162664662022-01-19T19:19:32Z266258266575266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267289" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-03-18T15:14:43ZDid the Saint Paul Public Housing Agency comply with Minnesota Statutes, Chapter 13, in denying a tenant access to copies of complaints made against the tenant? March 18, 2008; Saint Paul Public Housing Authority36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On January 29, 2008, IPAD received a letter dated January 18, 2008, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding his/her access to certain data from the Saint Paul Public Housing Authority (PHA).</p> <p>IPAD, on behalf of the Commissioner, wrote to Jon Gutzman, Executive Director of the PHA, in response to X's request. The purposes of this letter, dated February 6, 2008, were to inform him of X's request and to ask him to provide information or support for the PHA's position. On February 15, 2008, IPAD received a response, dated February 14, 2008, from Laura Pietan, Assistant City Attorney and Attorney for the PHA.</p> <p>A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:</p> <p class="opinion_quote">I live in Public Housing I wanted to file a grievance because of the complaint of unauthorized guests and noise disturbances I believe I am entitled to have the complaining tenants [sic] complaint in their own words (a copy of the actual complaint in writing) excluding information I am not entitled to have.</p> <p>In a letter to the PHA, X asked the PHA to provide documentation of the name of the complaining resident, the dates and times said resident claims of an 'Unauthorized Guests'</p> <p>In another letter to the PHA, X wrote:</p> <p class="opinion_quote">In other words, I request a copy of the original complaint in the tenants [sic] own words, but excluding information not subject to release (according to PHA)</p> <p class="opinion_quote">Also, please provide the specific relevant Minnesota Statute under [Minnesota Statutes, Chapter 13] that PHA relies upon in its refusing to provide me information on the tenant who complained.</p> <p>In a letter to X, Ms. Pietan wrote:</p> <p class="opinion_quote">...The PHA will not provide names of complainants, nor will it provide the actual complaints with the protected data excluded from the content of the complaints as you suggest.</p> <p class="opinion_quote">The PHA takes the position that any data that might identify an individual as a public housing tenant is private.</p> <p class="opinion_quote">The pertinent section of Minn. Stat. Chapter 13 which the PHA relies upon is section 13.462.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Saint Paul Public Housing Agency comply with Minnesota Statutes, Chapter 13, in denying a tenant access to copies of complaints made against the tenant?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Benefit data are classified under section 13.462 and are defined in subdivision 1, in relevant part, as data on individuals collected or created because the individual seeks information about becoming, is, or was an applicant for or a recipient of benefits or services provided under various housing programs administered by government entities.</p> <p>The operation of section 13.462 is such that all benefit data are private except for the data described in subdivision 2. The data listed in subdivision 2 as public include, The names and addresses of applicants for and recipients of benefits, aid, or assistance through programs administered by a government entity that are intended to assist with the purchase, rehabilitation, or other purposes related to housing or other real property...</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267677" title="05-023" target="_blank">Advisory Opinion 05-023</a>, the Commissioner opined that the language in subdivision 2 does not cover data about individuals collected and maintained on individuals who receive housing benefits <em>for the purposes of rental assistance</em>. Therefore, such data are private. (See section 13.462, subdivision 3.)</p> <p>In her comments to the Commissioner, Ms. Pietan wrote:</p> <p class="opinion_quote">X requested that the PHA provide [X] with the name of a PHA tenant who had made a complaint to PHA management about X. Later, X adjusted [X's] request to indicate [X] wanted to obtain the <em>original</em> complaint letter that was written to PHA management, but with information deemed private by the PHA to be omitted. [Emphasis provided.]</p> <p class="opinion_quote">The PHA declined to provide him with either the name of the complainant or the original letter with the suggested omission. The PHA based its determination on Minn. Stat. section 13.462. The PHA takes the position that the letter written by a PHA tenant and provided to management confidentially is private benefit data. It is highly likely that the author of the complaint letter would be identified by revealing the original letter to X. The original letter was collected and is maintained by the PHA because the author of the letter is a PHA tenant and as such, the PHA has a duty to protect the letter.</p> <p>X asked for the name of the complaining tenant and a copy of the original complaint. Pursuant to section 13.462, data about individuals who receive housing benefits for the purposes of rental assistance are private. Therefore, the PHA cannot release to the public any data identifying any individual who receives rental assistance. Ms. Pietan wrote that if the PHA released the complaint letter to X, the identity of the complaining PHA tenant most likely would be revealed. Therefore, the PHA complied with Chapter 13 in responding to X's data request.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that X raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Saint Paul Public Housing Agency complied with Minnesota Statutes, Chapter 13, in denying a tenant access to copies of complaints made against the tenant.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 18, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672892663472022-01-19T19:19:32Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266446" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2008-03-05T16:14:43ZWhat are the City's duties under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML), with regard to releasing or withholding the tapes of the closed meetings? Specifically, may the City Council authorize release of those tapes to the public before one of the events specified by section 13D.05, subdivision 3(c) has occurred, which event makes the tapes of such meetings available to the public? What is the classification of the tapes under Minnesota Statutes, Chapter 13, before and after one of the events specified in Minnesota Statutes, section 13D.05, subdivision 3(c) has occurred? Specifically, but not by way of limitation, if data that are not public data are discussed on the tapes, are those parts of the tapes public or not public once the tapes are available to the public pursuant to the statute? What is the classification under the Minnesota Statutes, Chapter13, of (a) the consultant's reports submitted to the Council at the closed meetings for purposes of discussing offers for the property, and (b) letters from the property owners involved in matter objecting to release of the tapes of the closed meetings?March 5, 2008; City of Northfield36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 14, 2007, the Commissioner received a letter dated December 13, 2007, from Maren Swanson, an attorney representing the City of Northfield. In her letter, Ms. Swanson asked the Commissioner to issue an advisory opinion relating to the classification of certain data and certain of a governing body's duties under the Open Meeting Law. Shortly thereafter, IPAD received comments from David Lansing.</p> <p>In a letter to Ms. Swanson dated December 21, 2007, IPAD requested additional information and clarification. Ms. Swanson submitted same in a letter dated January 14, 2008. In a letter dated January 31, 2008, IPAD invited Mr. Lansing to submit comments in response to Ms. Swanson's revised opinion request. IPAD received Mr. Lansing's comments on February 11, 2008.</p> <p>A summary of the facts as provided by Ms. Swanson is as follows. In the opinion request, she wrote:</p> <p class="opinion_quote">On May 7, and June 26, 2007, the Northfield City Council held closed meetings to consider offers and counteroffers for the acquisition of an interest in two specified properties for purposes of constructing a new municipal liquor store. The meetings were closed pursuant to Minn. Stat. Sec. 13D.05, Subd. 3 (c). The City followed the requirements of that statute.</p> <p class="opinion_quote">On November 19, 2007, in response to a lawsuit asserting that inappropriate subjects were addressed at the Closed Meetings (which the City denies) and in response to subsequent public and media interest in those meetings, the City Council voted to release the tapes of the [closed meetings] to the public.</p> <p class="opinion_quote">However, persons with interests in property considered for acquisition at the [closed meetings] have objected, in writing, to the release of the tapes of the meeting (and related documentation). They contend that release would violate [Minnesota Statutes, Chapter 13] by publicizing information deemed [not public] by statute.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Swanson's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>What are the City's duties under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML), with regard to releasing or withholding the tapes of the closed meetings? Specifically, may the City Council authorize release of those tapes to the public before one of the events specified by section 13D.05, subdivision 3(c) has occurred, which event makes the tapes of such meetings available to the public?</li> <li>What is the classification of the tapes under Minnesota Statutes, Chapter 13, before and after one of the events specified in Minnesota Statutes, section 13D.05, subdivision 3(c) has occurred? Specifically, but not by way of limitation, if data that are not public data are discussed on the tapes, are those parts of the tapes public or not public once the tapes are available to the public pursuant to the statute?</li> <li>What is the classification under the Minnesota Statutes, Chapter13, of (a) the consultant's reports submitted to the Council at the closed meetings for purposes of discussing offers for the property, and (b) letters from the property owners involved in matter objecting to release of the tapes of the closed meetings?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>What are the City's duties under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML), with regard to releasing or withholding the tapes of the closed meetings? Specifically, may the City Council authorize release of those tapes to the public before one of the events specified by section 13D.05, subdivision 3(c) has occurred, which event makes the tapes of such meetings available to the public?</em></p> <p>Minnesota Statutes, section 13D.05, subdivision 3(c)(3), states that public bodies may close a meeting to develop or consider offers or counteroffers for the purchase or sale of real or personal property. In addition:</p> <p class="opinion_quote">The proceedings of a meeting closed under this paragraph must be tape recorded at the expense of the public body. The recording must be preserved for eight years after the date of the meeting and made available to the public after all real or personal property discussed at the meeting has been purchased or sold or the governing body has abandoned the purchase or sale.</p> <p>Based on the statutory language, once one of the events described has occurred, the public body must release the tape recording. It seems reasonable to conclude, therefore, that the public body's duty is to withhold the recording until one of the conditions has been met. As this has not happened in the situation presented by Ms. Swanson, the public body's duty under Chapter 13D is to continue to withhold the recording, absent a court order to release.</p> <h2>Issue 2:</h2> <p><em>What is the classification of the tapes under Minnesota Statutes, Chapter 13, before and after one of the events specified in Minnesota Statutes, section 13D.05, subdivision 3(c) has occurred? Specifically, but not by way of limitation, if data that are not public data are discussed on the tapes, are those parts of the tapes public or not public once the tapes are available to the public pursuant to the statute?</em></p> <p>IPAD briefly reviewed the videotapes in question. As the Commissioner previously has opined, a government entity generally is in the best position to make specific determinations about data it collects and maintains. Ms. Swanson wrote in her letter that the City Council closed the meetings to consider offers and counteroffers for acquisition of an interest in two specified properties. The Commissioner is not aware that such data are classified as anything other than public.</p> <p>Thus, there is a conflict between the language in Chapter 13D which directs the public body to withhold the tape recording and the Chapter 13 classification of the tape, which is public. Minnesota Statutes, section 645.26, discusses how to interpret statutory provisions that are in conflict. Subdivision 1 of section 645.26 states that when the conflict is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session.</p> <p>Here, the language in Chapter 13D was enacted during the 2004 Legislative Session. The language stating the public presumption of government data was enacted prior to 2004. Based on the above analysis, the Commissioner concludes that although the data in the videotapes are classified as public, the public body cannot release them based on the language in section 13D.05, subdivision 3(c).</p> <h2>Issue 3:</h2> <p><em>What is the classification under the Minnesota Statutes, Chapter13, of (a) the consultant's reports submitted to the Council at the closed meetings for purposes of discussing offers for the property, and (b) letters from the property owners involved in matter objecting to release of the tapes of the closed meetings?</em></p> <p>Again, the City of Northfield is in the best position to make specific determinations about data in the consultants' reports and letters from the property owners. However, based on the Commissioner's review of these documents, it appears the data are public.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Swanson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The City Council's duty under Minnesota Statutes, section 13D.05, subdivision 3(c)(3), is to withhold the videotape recordings until one of the described events has occurred or eight years have passed.</li> <li>Because the classification of the data in the videotape recordings is presumptively public under Minnesota Statutes, there is a conflict. Pursuant to Minnesota Statutes, section 645.26, the language in Minnesota Statutes, section 13D.05, subdivision 3(c)(3), prevails and the recordings must be withheld from the public.</li> <li>Pursuant to Minnesota Statutes, Chapter13, the data in (a) the consultant's reports submitted to the Council at the closed meetings for purposes of discussing offers for the property, and (b) letters from the property owners involved in matter objecting to release of the tapes of the closed meetings are presumptively public.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 5, 2008</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2664462664452022-04-19T17:41:56Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267315" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-12-20T16:14:43ZDid Independent School District 531, Byron, comply with Minnesota Statutes, Chapter 13, in denying access to the following data relating to a hazing incident: the particular athletic team involved, the nature of the alleged hazing, the number of students disciplined, and the disciplinary action taken?January 10, 2007; School District 531 (Byron)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 26, 2007, IPAD received a letter from Kristi A. Hastings, an attorney, on behalf of her client, Todd County. In her letter, Ms. Hastings asked the Commissioner to issue an advisory opinion regarding the classification of certain data Todd County maintains. IPAD requested clarification and additional information, which Ms. Hastings provided in an e-mail dated November 29, 2007.</p> <p>In response to Ms. Hastings' request, IPAD, on behalf of the Commissioner, wrote to Jennifer Petersen, an attorney, on behalf of her client, Michael Petersen, former County Administrator. The purposes of this letter, dated December 6, 2007, were to inform her of Ms. Hastings' request and to ask her to submit comments, which she did in a letter dated December 14, 2007. A summary of the facts as Ms. Hastings presented them follows.</p> <p>Mr. Petersen was hired in the fall of 2007 as County Administrator. The terms of his employment agreement contained a six-month probationary period. While still in the probationary period, the County terminated his employment after several employee complaints regarding Mr. Petersen were investigated by an independent investigator . . .</p> <p>The County Board passed a resolution and motion to terminate Mr. Petersen's employment which states, in part: [i]nformation has been brought to the attention of this Board concerning County Administrator Michael Petersen relative to the potential need for disciplinary action . . .</p> <p>According to Ms. Hastings, Mr. Petersen is not a union member and is not subject to any Collective Bargaining Agreement with the County. She raised the issue of the possibility that Mr. Petersen could seek a remedy other than arbitration.</p> <p>On November 16, 2007, the County received a request from Tim King of the Browerville Blade, for copies of the following data:</p> <p class="opinion_quote">1. The nature of the complaint or charges against Mr. Petersen by the Todd County Commissioners.</p> <p class="opinion_quote">2. The final disposition of the disciplinary action against Mr. Petersen together with the specific reasons for the action and the data, investigative reports, and other written material that document the basis for the action.</p> <p class="opinion_quote">3. Any investigative reports or memos regarding the firing of Mr. Petersen that document the basis for that action.</p> <p class="opinion_quote">4. The terms of any agreement settling any dispute arising from the disciplinary action and firing of Mr. Petersen.</p> <p>On November 20, 2007, Ms. Hastings replied to Mr. King, stating that she intended to request this opinion. She also told him that the County and Mr. Petersen did not enter into a settlement agreement. The County paid him a 30-day severance, per the County's employment agreement with him.</p> <p>In her comments to the Commissioner, Ms. Petersen wrote that because Mr. Petersen was not a public official within the meaning of Minnesota Statutes, section 13.43, subdivision 2(e), the data at issue are not public.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Hasting's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of certain data Todd County maintains?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>(Ms. Petersen noted that section 13.43, subdivision 2(e), which classifies data about public officials (who are certain employees of the State under the definition) does not apply to Mr. Petersen. Ms. Petersen is correct, because local government employees are not included in the definition of public official. However, subdivision 2(a)(5) applies to Mr. Petersen, as it does to other public employees who are not public officials.)</p> <p>In situations like this one, in which an employee is not subject to a collective bargaining agreement 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. (See section 13.43, subdivision 2(b).)</p> <p>The classification of the data in question, i.e., the items numbered 1-3 in Mr. King's request (see above), is thus dependent upon whether there has been a final disposition of disciplinary action. In this situation, Mr. Petersen does not have grievance rights under a collective bargaining agreement, and the County has made its final decision about the disciplinary action, i.e., Mr. Petersen's termination.</p> <p>Ms. Hastings raised the issue of the possibility that Mr. Petersen could seek a remedy other than arbitration. The Commissioner addressed similar issues in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266673" title="96-050" target="_blank">96-050</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267643" title="00-035" target="_blank">00-035</a>. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/266673" title="96-050" target="_blank">96-050</a>, the Commissioner opined:</p> <p class="opinion_quote">The Minnesota Supreme Court case . . . referred to is <u>Annandale Advocate v. City of Annandale</u>, 435 N.W. 2d 24, (Minn. 1989). The Legislature amended Section 13.43 in 1990, following <u>Annandale</u>. That case, in relevant part, dealt with the meaning of the terms final decision and final disposition of disciplinary actions as these terms were used in Chapter 13.</p> <p class="opinion_quote">In <u>Annandale</u>, the Court found that a final <u>decision</u> of the City was not the final <u>disposition</u> of the disciplinary action, because the employee had exercised his right under the Veterans Preference Act to have a further hearing on the matter. The Court acknowledged that its interpretation would result in delay of months and even years before disciplinary records could be released to the public. (See <u>Annandale</u> at 29.) Subsequently, in 1990, the Legislature amended Section 13.43, subdivision 2, by adding clause (b), which provides the definition of final disposition of disciplinary action, and includes the language <u>regardless of the possibility of any later proceedings or court proceedings</u>. (See Laws of Minnesota, 1990, Chapter 550, Section 1.)</p> <p class="opinion_quote">Thus, according to the requirements of Section 13.43, subdivision 2, the specific reasons for and data documenting disciplinary action taken against a public employee become public when there has been a final disposition of the disciplinary action, <u>regardless of the possibility of any later proceeding or court proceedings</u>. The City has made its final decision; therefore there has been a final disposition of disciplinary action, and, regardless of any later proceeding, including a hearing under the Veterans Preference Act, the data sought by <em>The Forum</em> about J are public. [Emphasis provided.]</p> <p>Accordingly, data that the County maintains that document the basis of, including the specific reasons for, the disciplinary action the County took against Mr. Petersen are public, regardless of the possibility of any later proceedings or court proceedings.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Hastings raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The County has made its final decision, which is the final disposition of the disciplinary action taken, regardless of the possibility of any later proceedings or court proceedings. Accordingly, data that constitute the specific reasons for and document the basis of the disciplinary action are public data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 20, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673152664052022-01-19T19:21:22Z266258266297266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266836" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-12-03T16:14:43ZDid the City of Zimmerman comply with Minnesota Statutes, Chapter 13, when it denied access to memos relating to the dismissal of a City employee?December 3, 2007; City of Zimmerman36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><strong>Note: The Minnesota Supreme Court in <em>Burks v. Metropolitan Council, No. A14-1651 (Minn. Aug. 24, 2016)</em>, held that data subjects have the right to access data about themselves, even if the data in question identify private data on other individuals.</strong> <br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On August 21, 2007, IPAD received a letter, dated August 16, 2007, from Soren M. Mattick, an attorney, on behalf of the City of Zimmerman. In his letter, Mr. Mattick asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD requested clarification and additional information, which Mr. Mattick provided in a letter dated September 13, 2007, and a revised opinion request dated October 16, 2007. In his submissions to IPAD, Mr. Mattick provided copies of the data at issue.</p> <p>In response to Mr. Mattick's request, IPAD, on behalf of the Commissioner, wrote to Brandon M. Fitzsimmons, an attorney, on behalf of his client, Gregory A. LaFond, former City Administrator. The purpose of this letter, dated October 22, 2007, was to invite him to submit comments, which he did in a letter dated October 30, 2007. (Mr. Fitzsimmons had asked the Commissioner to address the same issue in a request dated September 14, 2007.) A summary of the facts as Mr. Mattick presented them follows.</p> <p>Mr. LaFond served as City Administrator until February of 2007; in that role he supervised Ms. Molitor, the former Deputy Clerk. On September 15, 2006, the City Council met to consider allegations against Ms. Molitor, and voted to terminate her employment, effective September 18, 2006. At the meeting, Ms. Molitor submitted a letter regarding the allegations to the City Council.</p> <p>Mr. Mattick wrote:</p> <p class="opinion_quote">Following Ms. Molitor's termination, Mr. LaFond wrote a series of memoranda to the Mayor, City Council, Department Heads, and me. These memoranda ( the Memos ) were all written between September 19, 2006 and September 25, 2006. In the Memos, Mr. LaFond responded to various allegations that Ms. Molitor raised in her September 15 letter and statements that she made during the closed session.</p> <p>According to Mr. Mattick, in June of 2007, Mr. LaFond requested access to data related to the City's decision to terminate Ms. Molitor's employment. The City complied with part of his request, and denied him access to the data at issue, namely the memos Mr. LaFond authored and submitted to the City subsequent to the effective date of Ms. Molitor's termination. The City stated to Mr. LaFond that the data contained in the memos are private under Minnesota Statutes, section 13.43.</p> <p>In his comments to the Commissioner, Mr. Mattick stated that the data in the memos are private personnel data about both Mr. LaFond and Ms. Molitor. He wrote: [o]rdinarily, the subject of the data must be given access to the public and private data stored on him. See Minn. Stat. section 13.04, subd. 3. The Memos present a more complicated problem because Mr. LaFond and Ms. Molitor are both data subjects and much of the data is about both of them.</p> <p>Mr. Mattick discussed the applicability of <em>Northwest Publications v. City of Bloomington</em>, 499 N.W.2d 509 (Minn. Ct. App. 1993), and Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267622" title="04-014" target="_blank">04-014</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267552" title="96-002" target="_blank">96-002</a>.</p> <p>Mr. Fitzsimmons stated his agreement that the memos contain data about both Mr. LaFond and Ms. Molitor, but asserted that, for various reasons, the data are public.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Mattick's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Zimmerman comply with Minnesota Statutes, Chapter 13, when it denied access to memos relating to the dismissal of a City employee?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Private data are accessible to the subject of the data, and others who have specific authority granting them access. (See section 13.02, subdivision 12; section 13.04 and Minnesota Rules, part 1205.0400, subpart 2.)</p> <p>Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>According to Mr. Mattick, the City took final disciplinary action against Ms. Molitor when it fired her. There is no dispute that the first of the memos was created the day after the effective date of Ms. Molitor's termination, and the others were created subsequently.</p> <p>Mr. Fitzsimmons stated that because the memos contain Mr. LaFond's responses to Ms. Molitor's September 15 letter, which the City has determined is public in connection with her termination, the data in the memos are public. The Commissioner respectfully disagrees. The data at issue were created after the City fired Ms. Molitor. Thus, those data cannot be data that document the basis of final disciplinary action. The City could not have based its decision about disciplinary action on data that did not exist at the time it made its decision.</p> <p>Mr. LaFond is entitled to gain access to data in the memos only if the data are public, or are private data of which he is the sole subject. The fact that Mr. LaFond authored the memos does not itself give him the right to gain access to them. When he was employed by the City, his work assignment could reasonably have required that he should get access, per Minnesota Rules, part 1205.0400, subpart 2. As a former employee, however, he has no greater right to gain access to private data about another employee than any other member of the public.</p> <p>The Commissioner has opined previously in numerous opinions that government entities are in the best position to determine the subject(s) of the data they maintain. As Mr. Mattick noted, the Commissioner addressed the issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267622" title="04-014" target="_blank">04-014</a>:</p> <p class="opinion_quote">When a government entity is faced with redacting a document containing not public and public data, it is important for the entity to review the document carefully to determine whether the release of any of the data may result in the inappropriate release of not public data. Government entities are in the best position to make such determinations because they have all of the relevant information and are knowledgeable about the circumstances.</p> <p>In <em>Northwest Publications, Inc. v. City of Bloomington</em>, 499 N.W.2d 509 (Minn.App. 1993), the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267649" title="03-018" target="_blank">03-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267878" title="03-001" target="_blank">03-001</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267448" title="00-065" target="_blank">00-065</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267552" title="96-002" target="_blank">96-002</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267854" title="94-034" target="_blank">94-034</a>.)</p> <p>Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in <em>Northwest Publications</em>, Inc., maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately. Given the clear presumption of openness in Chapter 13, the District should make every effort to avoid a situation where it must withhold an entire document from the public. The Commissioner adds that the District must disclose any public data in the document, including, pursuant to section 13.43, subdivision 2(a)(4), that a complaint was made against a member of the administration, the status of the complaint, and the name of the employee about whom the complaint was made.</p> <p>In his opinion request, Mr. Mattick wrote:</p> <p class="opinion_quote">Here the City examined the memos and concluded that it would be impossible to redact the Memos. Because of the nature of the dispute between the two data subjects discussed in the memos, the data that each would ordinarily be entitled to as data subjects is so intertwined with other private personnel data that redaction is not a plausible solution. Further, as the Commissioner advised, the City is in the best position to make this determination. Accordingly, the City properly denied Mr. LaFond's request.</p> <p>Upon cursory examination of the data at issue, the Commissioner has the following comments. The memos contain data about Mr. LaFond, Ms. Molitor, and other City employees, which are presumptively private under section 13.43. At least some of the same data appear to be about both Mr. LaFond and Ms. Molitor, such that the Commissioner could not determine a single data subject. Therefore, while she cannot state with certainty that the City's determination regarding all of the data in the memos is correct, the Commissioner believes it is reasonable for the City to take the position that the memos contain data that are inextricably intertwined, making redaction impossible. As she has opined previously, in situations like this one, government entities are in the best position to make those determinations.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Mattick raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Zimmerman complied with Minnesota Statutes, Chapter 13, when it denied access to memos relating to the dismissal of a City employee, if the data in the memos are inextricably intertwined, making redaction impossible.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 3, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2668362663272022-01-19T19:21:22Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267269" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-11-16T16:14:43ZIs the Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) subject to the requirements of Chapter 13D? If the answer to Issue 1 is yes, did the Free Speech Working Group comply with the notice requirements of section 13D.04, subdivision 1, regarding its meeting on August 8, 2007?November 16, 2007; Minneapolis City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On October 5, 2007, IPAD received a letter dated October 3, 2007, from Michelle Gross, on behalf of the Communities United Against Police Brutality. In her letter, Ms. Gross asked the Commissioner to issue an advisory opinion regarding whether the Minneapolis City Council's Free Speech Working Group complied with Minnesota Statutes, Chapter 13D, the Open Meeting Law. Ms. Gross submitted the $200 fee required by section 13.072.</p> <p>On October 17, 2007, IPAD, on behalf of the Commissioner, wrote to Barbara Johnson, President of the Minneapolis City Council. In its letter, IPAD informed City Council President Johnson of Ms. Gross' request and gave the Council an opportunity to explain its position. In a letter dated October 24, 2007, Lisa Needham, Assistant City Attorney, responded on behalf of the Council.</p> <p>A summary of the facts as provided by Ms. Gross is as follows. In her opinion request, she wrote:</p> <p class="opinion_quote">On January 17, 2007, the Minneapolis city council approved a City Service Agreement for the 2008 Republican National Convention. In the process of doing so, language was adopted that formed a Free Speech Working Group. . . .</p> <p class="opinion_quote">In an effort to learn the dates, times and location of the meetings, I visited the Minneapolis City Council office. No notice for the August 8, 2007 meeting (or any prior meetings of this working group) was posted on the official city council bulletin board. . . .</p> <p class="opinion_quote">[Recently] I spoke to [the City Coordinator who] stated You know, this meeting is not public. By this, I believe she meant that these meetings are not subject to the Minnesota open meeting law.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Ms. Gross' opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Is the Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) subject to the requirements of Chapter 13D?</li> <li>If the answer to Issue 1 is yes, did the Free Speech Working Group comply with the notice requirements of section 13D.04, subdivision 1, regarding its meeting on August 8, 2007?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Is the Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) subject to the requirements of Chapter 13D?</em></p> <p>Of relevance here, the Open Meeting Law applies to all meetings of any committee, subcommittee, board, department, or commission of a public body. (See section 13D.01, subdivision 1(c).) Meetings of these groups must be open to the public when the meeting requires or permits the group by law to transact public business. (See section 13D.01, subdivision 1.)</p> <p>In her comments to the Commissioner, Ms. Needham wrote:</p> <p class="opinion_quote">The Free Speech Working Group was created in light of the upcoming Republican National Convention. The City Council directed the City Coordinator to form a work group that would address free speech issues as they relate to the convention. . . The work group is comprised of the following members:</p> <p class="opinion_quote">- the Mayor</p> <p class="opinion_quote">- up to two members of the City Council</p> <p class="opinion_quote">- the Chief of Police</p> <p class="opinion_quote">- the Director of Civil Rights</p> <p class="opinion_quote">- the City Attorney</p> <p class="opinion_quote">- the Assistant City Coordinator, Emergency Preparedness Regulatory Services</p> <p class="opinion_quote">- two representatives of recognized civil liberties groups such as the American Civil Liberties Union or the National Lawyers Guild.</p> <p>Ms. Needham discussed that the work group was tasked with developing strategies regarding a number of goals; she listed those goals. She wrote, However, the work group does not possess any decision-making authority, nor does it transact any public business. Ms. Needham further stated:</p> <p class="opinion_quote">. . . the Working Group is not tasked with the ability to make decisions on behalf of the City, but merely to develop and review strategies for addressing free speech concerns. Ultimately, any policy direction on the matter would come from the Council, and such a matter would be addressed in the public meetings of the Council and its duly appointed committees. Thus, the concern that the work group is designed to circumvent public scrutiny of City deliberations is unfounded. Next, as only two members, with one alternate, of the Council are members of the work group, no quorum of any council committee can be reached. Therefore the concerns that the work group constitutes a gathering whereby the members of the Council are discussing, deciding, or receiving information as a group are also unfounded.</p> <p>A 1993 Minnesota Court of Appeals case addressed an issue similar to the one before the Commissioner. In <em>Sovereign v. Dunn</em>, 498 N.W.2d 62 (Minn.App. 1993), the Court found that a series of mediation sessions, in which less than a quorum of the Lake Elmo City Council members participated, were not a committee, subcommittee, board, department, or commission of the City of Lake Elmo for purposes of the Open Meeting Law:</p> <p class="opinion_quote">Accordingly, we hold that a gathering of public officials is not a committee, subcommittee, board, department or commission subject to the open meeting law unless the group is capable of exercising decision-making powers of the governing body. The capacity to act on behalf of the governing body is presumed where members of the group comprise a quorum of the body. It could also arise where there has been a delegation of power from the governing body.</p> <p class="opinion_quote">The Lake Elmo delegation did not constitute a quorum of the city council, nor did it exercise any authority on behalf of the council. . . . Though the mediation sessions produced a negotiated agreement, this agreement was presented to the city council in an open meeting with opportunity for public involvement.</p> <p><em>Sovereign</em> at 67-68.</p> <p>In the present situation, the Free Speech Working Group is not capable of exercising decision-making powers of the governing body. Its stated purpose is to create a model for how the City can preserve the right to political speech and civic debate without disrupting community life during the 2008 Republican National Convention. The Work Group must report approximately every six months, and as needed, to the City Council's Ways Means/Budget and Public Safety and Regulatory Services Committees. In addition, because only two Council Members are part of the Work Group's membership, no quorum of the City Council exists. Based on the language in section 13D.01 and the Court of Appeals decision in Sovereign, the Commissioner does not believe that the Free Speech Working Group is subject to the requirements of Chapter 13D.</p> <h2>Issue 2:</h2> <p><em>If the answer to Issue 1 is yes, did the Free Speech Working Group comply with the notice requirements of section 13D.04, subdivision 1, regarding its meeting on August 8, 2007?</em></p> <p>The Free Speech Working Group is not subject to the requirements of Chapter 13D. Therefore, it is not required to provide notice of its meetings.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Gross raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) is not subject to the requirements of Chapter 13D.</li> <li>The Free Speech Working Group is not subject to the requirements of Chapter 13D. Therefore, it is not required to provide notice of its meetings.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 16, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672692665722022-01-19T19:21:22Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267288" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-11-14T16:14:43ZWhen the Minneapolis City Council's Public Safety and Regulatory Services Committee and Health, Energy and Environment Committee met jointly on February 15, 2006, did they comply with Minnesota Statutes, section 13D.01, subdivision 6?November 14, 2007; Minneapolis City Council36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On October 5, 2007, IPAD received a letter, dated October 3, 2007, from Michelle Gross. In her letter, Ms. Gross asked the Commissioner to issue an advisory opinion regarding an issue related to a joint meeting of the Minneapolis City Council's Public Safety and Regulatory Services Committee and its Health, Energy and Environment Committee (Committees) and their compliance with the Open Meeting Law, Minnesota Statutes, Chapter 13D. Ms. Gross submitted the $200.00 fee required by section 13.072. </p><p> On October 17, 2007, IPAD wrote to Ms. Barbara Johnson, President of the Minneapolis City Council (Council). In its letter, IPAD informed Ms. Johnson of Ms. Gross' request and gave the Council an opportunity to explain its position. The Council presented its position in a letter from its attorney, Lisa Needham, dated October 24, 2007. </p><p> A summary of the facts as presented by Ms. Gross is as follows. </p><p> The Committees met jointly on February 15, 2006, to consider a report on the Civilian Police Review Authority's (CRA) policies and processes. Prior to the start of the meeting, Ms. Gross looked for a copy of the report and was unable to find a copy. Ms. Gross then requested a copy of the report from staff and was told the report would not be made available to the public until after it had been presented to the Committees at the meeting. </p><p> In her opinion request, Ms. Gross wrote: </p><p class="opinion_quote"> During the course of the meeting, a PowerPoint presentation was made on the report. After the presentation, committee members began to consider a number of recommendations in the report. When it became clear that committee members would actually be voting on the content of the report, I again approached [staff] and asked to inspect the report being discussed and she reiterated that it would not be made available until later. Committee members discussed the content of the report, referring to some recommendations as A through G without specifying what those recommendations were. The public present was unable to know what was being discussed or voted on. </p><hr /><br /><h2> Issue: <br /></h2> Based on Ms. Gross' opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">When the Minneapolis City Council's Public Safety and Regulatory Services Committee and Health, Energy and Environment Committee met jointly on February 15, 2006, did they comply with Minnesota Statutes, section 13D.01, subdivision 6?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> The Committees are subject to the Open Meeting Law as provided in Minnesota Statutes, section 13D.01, subdivision 1(b)(4) and subdivision 1(c)(1). </p><p> Minnesota Statutes, section 13D.01, subdivision 6(a) states: </p><p class="opinion_quote"> In any meeting, which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and: <br /> (1) distributed at the meeting to all members of the governing body; <br /> (2) distributed before the meeting to all members; or <br /> (3) available in the meeting room to all members; <br /> shall be available in the meeting room for inspection by the public while the governing body considers their subject matter. </p><p> In the Council's response to Ms. Gross' opinion request, Ms. Needham wrote: </p><p class="opinion_quote"> [Staff] indicated that she did not have copies of the report. . . . The City acknowledges that the report in question, a lengthy document addressing the CRA's performance, was not made available to individuals attending the PSRS/HEE committee meeting during the presentation of the report. However, copies were made available during the meeting immediately following the presentation. </p><p> Minnesota Statutes, section 13D.01, subdivision 6(a), requires any printed materials to be made available for public inspection while the governing body considers their subject matter. Even though the report was available for public inspection immediately following the presentation of the report, the Council acknowledges that the report was not made available during the actual presentation. Therefore, in the Commissioner's opinion, the Committees did not comply with Minnesota Statutes, section 13D.01, subdivision 6 because the report was not available in the meeting room for inspection by the public while the Committees were considering the subject matter of the report. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Ms. Gross raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Minneapolis City Council's Public Safety and Regulatory Services Committee and its Health, Energy and Environment Committee, which met jointly on February 15, 2006, did not comply with Minnesota Statutes, section 13D.01, subdivision 6. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: November 14, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2672882663462022-01-19T19:21:21Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267981" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-11-09T16:14:43ZDid the City of Newport comply with Minnesota Statutes, Chapter 13, in its response to a May 29, 2007, request to inspect certain government data?November 9, 2007; City of Newport36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On September 11, 2007, IPAD received a letter, dated September 8, from Paul Hansen. In his letter, Mr. Hansen asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Newport. IPAD requested clarification and additional information, which Mr. Hansen provided on September 24, 2007. </p><p> In response to Mr. Hansen's request, IPAD, on behalf of the Commissioner, wrote to Larry Bodahl, City Administrator. The purposes of this letter, dated September 24, 2007, were to inform him of Mr. Hansen's request and to ask him to provide information or support for the City's position. On October 3, 2007, IPAD received a response, dated October 1, 2007, from Veid Muiznieks, Chief of Police for the City. On October 18, 2007, Mr. Bodahl submitted additional information. </p><p> A summary of the facts as Mr. Hansen presented them follows. In a letter dated May 29, 2007, Mr. Hansen requested access to and inspection of the public portions of complaint data on six City police officers. Mr. Hansen stated that the City did not respond, so he wrote again, reiterating his request, on July 12, 2007. According to Mr. Hansen, as of the date of his opinion request, he had not received either a reply to my request or access to the data requested. </p><p> In his comments to the Commissioner, Chief Muiznieks stated that Mr. Bodahl was out of the office until October 15. Chief Muiznieks wrote: </p><p class="opinion_quote"> Regarding the request for 'complaint' information on police officers from [Mr.] Hansen, I had begun a search sometime after [Mr.] Hansen first requested data. The issues I have before me are multiple in [Mr.] Hansen's request. First and foremost, the City of Newport has no administrative staff to search for 'complaint' data on the six (6) police officers (on two of whom [Mr.] Hansen misspelled names) named by [Mr.] Hansen. This leaves the search to me, the City of Newport Chief of Police. From day to day I am required to balance the needs of data requestors and other police issues. Secondly, the past Chief of Police may have placed 'complaint' information on different storage media during his twelve and one-half years of City of Newport Employment. Media include paper, 'floppy disks', C.D.'s, and computer files with different names and titles that need be searched. Lastly, some of the police officers named had careers dating to the mid-nineteen sixties and nineteen seventies. Some of the older files are more difficult to search because of filing technique and location and need to be hand searched. </p><p class="opinion_quote"> The City of Newport most certainly wishes all requestors to receive the data they wish and will continue to work toward providing the data in a 'reasonable' practical time frame. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Hansen's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Newport comply with Minnesota Statutes, Chapter 13, in its response to a May 29, 2007, request to inspect certain government data?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In addition, pursuant to section 13.03, subdivision 1, entities must keep records containing data in such an arrangement and condition as to make them easily accessible for convenient use. </p><p> Chief Muiznieks wrote that the data apparently are filed in numerous places, on different storage media. He stated that the City does not have administrative staff available to respond to such requests like this, so that it is he who must respond. </p><p> Chapter 13 confers upon individuals the right to request and gain access to data. Mr. Hansen asked for specific data, and the City is obliged to provide those data regardless of how they are filed. The fact that the City cannot easily locate data documenting complaints filed against police officers does not negate the City's obligation to respond in an appropriate and prompt manner, within a reasonable time. Chief Muiznieks also stated that some of the names of the officers were misspelled. If the City needed to clarify any aspect of Mr. Hansen's request it should have done so promptly upon receipt of his request. </p><p> Mr. Hansen asked for the data on May 29, 2007, and the City has not yet provided him with access. This is not a timely response. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Hansen raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Newport did not comply with Minnesota Statutes, Chapter 13, in its response to a May 29, 2007, request to inspect certain government data. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: November 9, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679812022-01-19T19:21:21Z266258266264266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267368" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-10-31T15:14:43ZDid the Minnesota Pollution Control Agency comply with Minnesota Statutes, Chapter 13, when it denied public access to the home addresses of individual members of the Minnesota Climate Change Advisory Group?October 31, 2007; Minnesota Pollution Control Agency36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <div align="left"> <p><strong><em>Note: Minnesota Statutes, section 13.601, was further amended in 2008, after this opinion was issued. In the event that there is a conflict between the conclusion in the opinion and the statute, the later enacted statutory language governs.</em></strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On September 20, 2007, IPAD received a letter, dated September 18, 2007, from Sheila Kihne. In her letter, Ms. Kihne asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the Minnesota Pollution Control Agency (MPCA.)</p> <p>In response to Ms. Kihne's request, IPAD, on behalf of the Commissioner, wrote to Brad Moore, Commissioner of MPCA. The purposes of this letter, dated September 24, 2007, were to inform him of Ms. Kihne's request and to ask him to provide information or support for MPCA's position. On October 1, 2007, IPAD received a response, dated same, from Ann E. Cohen, Assistant Attorney General, on behalf of MPCA. Ms. Cohen submitted additional comments in a letter dated October 12, 2007.</p> <p>A summary of the facts as Ms. Kihne presented them follows. Ms. Kihne wrote that she first requested access to the home addresses for the individual members of the Minnesota Climate Change Advisory Group (MCCAG) in late June 2007, in a telephone conversation with an MPCA staff member. Initially she was told she could have the data; the following day she was told she could not.</p> <p>Ms. Kihne stated that she then requested access to the home addresses of MCCAG members via e-mail and fax on July 12, 2007. David J. Thornton, Assistant Commissioner of MPCA replied in an e-mail on July 19, 2007, that the home addresses were private.</p> <p>Ms. Kihne then sent a July 30, 2007, e-mail to Commissioner Moore, and repeated her request. In her e-mail, Ms. Kihne wrote: [i]f the PCA is going to deny access to this information then I'd like to request for [sic] a citation of statute that supports that decision.</p> <p>In an e-mail dated July 31, 2007, Mr. Thornton replied, I regret that I did not include the statutory citation that we consulted prior to my response to your initial request. I have included it below. Mr. Thornton included citations to sections 13.601, elected and appointed officials, and 13.43, personnel data. He stated [a]gain, our interpretation of the statute is that their home address is private information.</p> <p>In her comments to the Commissioner, Ms. Cohen referred to MCCAG as an appointed advisory body. She stated that under section 13.43, the definition of personnel data includes data on individuals who perform services on a voluntary basis for a government entity, and that home addresses of volunteers are not public under that section. Ms. Cohen stated that MPCA's position is consistent with Advisory Opinion 00-049, in which the Commissioner opined that the home address of a member of a school board was private. She wrote: . . . such members were 'employees' of the School District and . . . data about such persons was 'personnel data.'</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Kihne's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Minnesota Pollution Control Agency comply with Minnesota Statutes, Chapter 13, when it denied public access to the home addresses of individual members of the Minnesota Climate Change Advisory Group?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>The 2005 Legislature enacted changes to provisions relating to data on individuals who are members of or applicants to advisory boards or commissions. Of relevance here, prior to August 1, 2005, data about members of or applicants to advisory boards or commissions were classified under section 13.43; home addresses of those individuals were classified as public. The effect of the 2005 change is that data about members of or applicants to advisory boards or commissions are now classified under section 13.601.</p> <p>Pursuant to section 13.601:</p> <p class="opinion_quote">The following data on all applicants for election or appointment to a public body, including those subject to chapter 13D, are public: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267841" title="05-036" target="_blank">Advisory Opinion 05-036</a>, the Commissioner opined:</p> <p class="opinion_quote">Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.601, subdivision 3, provides that certain data are public - essentially, restating the general presumption. This does not mean that all other data on applicants for election or appointment to a public body are not public. Given the operation of Chapter 13, if the Legislature intended for all other data on applicants for election/appointment to be not public, the Legislature needed to enact a provision so stating.</p> <p>The Commissioner respectfully disagrees with MPCA's position, as articulated by Ms. Cohen, that members of MCCAG are considered volunteers for purposes of section 13.43. Members of and applicants to boards or commissions are treated as a group separate from volunteers. As noted earlier, in the definition of personnel data that was in effect prior to the 2005 legislation, volunteers and members of or applicants to advisory boards or commissions were distinct categories of individuals, both of whose data were classified under section 13.43. Now, data on those distinct categories of individuals are classified under separate statutes. Data on volunteers are still classified under section 13.43; data on board/commission members/applicants are now classified under section 13.601.</p> <p>The Commissioner also disagrees that <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267682" title="00-049" target="_blank">Advisory Opinion 00-049</a>, which was issued prior to the 2005 legislative change, applies here. In that case, school board members were considered employees of the District, and therefore data about them are classified under section 13.43. Ms. Cohen did not state that MPCA considers MCCAG members employees for purposes of section 13.43.</p> <p>Data about appointed members of advisory boards like MCCAG are classified under section 13.601, which does not classify home addresses as private. Accordingly, the home addresses of MCCAG members are public under the general presumption in section 13.03.</p> <p>The Commissioner notes that subsequent to <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267841" title="05-036" target="_blank">05-036</a>, the Minnesota Attorney General issued two opinions (July 14, 2006; October 6, 2006) related to narrow issues involving the application of section 13.601 to data about candidates for appointment or election to, or incumbents of, elective office, which are not applicable here.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Kihne raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Minnesota Pollution Control Agency did not comply with Minnesota Statutes, Chapter 13, when it denied public access to the home addresses of individual members of the Minnesota Climate Change Advisory Group.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 31, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673682670042667692022-01-19T19:21:21Z266258266293266263266323266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266624" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-10-17T15:14:43ZDid Independent School District 347, Willmar, comply with Minnesota Statutes, Chapter 13, when it determined that a student's name, which appears in certain data relating to an investigation of allegations of misconduct by a teacher, is only incidental to the data, and is not private educational data under section 13.32?October 17, 2007; School District 347 (Willmar)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On, August 30, 2007, IPAD received a letter, dated August 28, 2007, from Nancy Blumstein, an attorney, on behalf of her client, Independent School District 347, Willmar. In her letter, Ms. Blumstein asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD requested clarification and additional information, which Ms. Blumstein provided in a letter dated September 17, 2007.</p> <p>In response to Ms. Blumstein's request, IPAD, on behalf of the Commissioner, wrote to Meg Kane, an attorney, on behalf of her client, the parent of a District student. The purpose of this letter, dated September 20, 2007, was to invite her to submit comments, because her client's rights may be affected by the outcome of this opinion. Ms. Kane provided comments in a letter dated October 9, 2007.</p> <p>A summary of the facts as Ms. Blumstein presented them follows.</p> <p>According to Ms. Blumstein:</p> <p class="opinion_quote">The District employs a teacher about whom complaints regarding the treatment of students have been made. The District has thoroughly investigated any and all complaints. No discipline resulted from the investigations. The parent of one of the students mentioned in the reports has now demanded copies of any and all investigation reports in which [his/her] child is mentioned. The student and [his/her] parent were interviewed for only one of the investigations. However, the Student's name was raised in the course of three investigations.</p> <p class="opinion_quote">The District has provided the Parent copies of all educational records it maintains for the Student. This specifically includes a redacted copy of the summary of the one interview conducted with the Parent and the Student.</p> <p class="opinion_quote">The District has not released any other portion of the investigation reports that the Parent has requested because it believes the information constitutes private personnel data to which the student and parent have no right of access. The investigations were undertaken as a result of the teacher's employment with the District and in order to determine the appropriateness of [his/her] conduct as a teacher. The District has reviewed the data in question and has determined that the teacher, not the student, is the subject of both the investigation and the data. The review confirms that the identity of the student about whom the teacher is alleged to have mistreated is completely incidental to the report.</p> <p>In her comments, Ms. Kane stated that the data in question are public under section 13.43, subdivisions 2(a)(4) (5), and 2(b).</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Blumstein's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Independent School District 347, Willmar, comply with Minnesota Statutes, Chapter 13, when it determined that a student's name, which appears in certain data relating to an investigation of allegations of misconduct by a teacher, is only incidental to the data, and is not private educational data under section 13.32?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Data on individuals means 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.)</p> <p>Minnesota Statutes, section 13.32, classifies data on individuals that are about students. Generally, pursuant to section 13.32 and federal law, data about students are private.</p> <p>Section 13.43 classifies data on individuals who are current or former employees. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.</p> <p>In a situation in which someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge.</p> <p>If a government entity has taken disciplinary action and a final disposition has occurred, the following additional data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>According to Ms. Blumstein, the District did not take disciplinary action against the teacher. Therefore, pursuant to section 13.43, the only associated data about the teacher that are accessible to the public are the existence and status of the complaint or charge. The Commissioner respectfully disagrees with Ms. Kane's assertion that the interviews and all other investigative data are public.</p> <p>If any of the data related to the District's investigations of misconduct by a teacher are classified as private educational data, however, the parent of the data subject child would be entitled to have access to those data. Ms. Blumstein asserts that the data in question are solely private personnel data about the teacher.</p> <p>Ms. Blumstein wrote, [t]o the extent the Student was mentioned in the reports, [his/her] identity was incidental. In other words, whether it was [him/her] or another student whom the teacher was alleged to have mistreated was immaterial to the investigation.</p> <p>Ms. Blumstein further commented:</p> <p class="opinion_quote">In this case, the identity of any student referenced in the reports of which the Parent requested copies is merely incidental to the purpose for which the investigative reports were conducted and have been maintained (the employee's performance). Therefore, the Student(s) are not the subject [sic] of the data requested and the data cannot be considered educational data. See <em>Edina Education Association v. Independent School District No. 273</em>, 562 N.W.2d 306, 311 (Minn.App. 1997); Minnesota Department of Administration Advisory Opinion: 00-065.</p> <p>The Commissioner has opined previously that in situations like this, in which an entity must determine who is/are the subject(s) of government data, the entity is in the best position to make that determination. Ms. Blumstein stated that the District examined the data in question, and determined that the teacher is the only subject, and that the student's name is only incidental to the data. Therefore, the District appropriately denied the parent access to data other than the redacted interview with the parent's child.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Blumstein raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Independent School District 347, Willmar, complied with Minnesota Statutes, Chapter 13, when it determined that a student's name, which appears in certain data relating to an investigation of allegations of misconduct by a teacher, is only incidental to the data, and is not private educational data under section 13.32.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 17, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2666242663252022-01-19T19:21:21Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267982" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-09-27T15:15:43ZDid Stearns County comply with Minnesota Statutes, Chapter 13, when it released data in a parenting assessment to participants in a family group decision making conference?September 27, 2007; Stearns County36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On July 23, 2007, IPAD received a letter dated July 11, 2007, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding a possible inappropriate dissemination of data about X by Stearns County. IPAD requested additional information, which X provided on August 8, 2007. </p><p> IPAD, on behalf of the Commissioner, wrote to Roma Steil, Director of Stearns County Human Services, in response to X's request. The purposes of this letter, dated August 10, 2007, were to inform her of X's request and to ask her to provide information or support for the County's position. On September 4, 2007, IPAD received a response, dated same, from Scott Anderson and Sonya Guggemos, attorneys representing the County. </p><p> A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote: </p><p class="opinion_quote"> . . . Stearns County set up a Family Group Decision Making Conference for my [child] . . . At this meeting one of the papers given out was [my] Parneting [sic] Assessment . . . handed out by [a Stearns County social worker]. [I] told [the social worker] that she shouldn't be giving that out. [The social worker] told me she could and handed it out to the rest of the people. [X noted that there were approximately 15 people at the conference-many of them family members.] [Later] I called [the social worker's supervisor] and left her a message about what [the social worker] had done. [About a month later] I received a letter from the [Supervisor] saying they were checking into the matter . . . Then . . . I received telephone calls from [4 family members who attended the conference] telling that [County staff] had called them and told them to send the Parneting [sic] Assessment back to Stearns County. Then I received a call from [County staff] asking me if I gave [the social worker] permission to hand out the Parneting [sic] Assessment and I told him no. . . . </p><p> X also noted that the parenting assessment was ordered by the County regarding an issue about the custody of X's child and was conducted by a licensed psychologist. </p><hr /><br /><h2> Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did Stearns County comply with Minnesota Statutes, Chapter 13, when it released data in a parenting assessment to participants in a family group decision making conference? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. </p><p> Data in the parenting assessment that Stearns County created are classified by section 13.46, welfare data. Pursuant to subdivision 2 of section 13.46, such data are private. </p><p> Pursuant to section 13.02, subdivision 12, private data are accessible to the data subject and those within the government entity who need the data to do their work. Private data may not be disclosed to other individuals unless there is specific statutory authority or the data subject has given written informed consent for the release of the data. </p><p> Mr. Anderson and Ms. Guggemos attached to their comments an affidavit from the County social worker regarding the family conference. Mr. Anderson and Ms. Guggemos wrote: </p><p class="opinion_quote"> . . . we note a couple of important things. First, there was a written release that was obtained from X to release information to the group invited to the meeting. As noted in the affidavit of [the social worker], however, the County has not been able to locate that release. As an aside, we would note that the County is concerned about the apparent misplacement of this release. It is intending to conduct an internal audit pursuant to Minn. Stat. section13.392 as part of a process to ensure this doesn't happen again. </p><p class="opinion_quote"> Notwithstanding, as [the social worker indicates], X gave verbal authorization at the meeting for the release and sharing of the parenting assessment . . . Because of this, the County vigorously disagrees with the statements that X is making at this time that there was no consent to release the information in question. </p><p> Mr. Anderson and Ms. Guggemos attached to their comments a blank copy of the informed consent document. </p><p> In her affidavit, the social worker wrote: </p><p class="opinion_quote"> 9. Prior to the start of [the conference], I gave X a copy of [the consent form] which listed the names and addresses of those individuals who had been invited to attend the Conference. This form explained that some of the information to be discussed at the meeting could be considered private and/or protected and by signing, the individual was knowingly waiving any rights to keep that information confidential in the course of the [conference]. I gave X the form to sign because the discussion at the meeting would concern custody of X's [child] and X was the custodial parent. X signed the [release form] in my presence. </p><p class="opinion_quote"> 10. I placed the signed [consent form] in the County's case file after [the conference]. When the file was reviewed by [Stearns County Human Services] following X's complaint, they were unable to locate the signed form. . . . </p><p> There is a factual dispute the Commissioner is unable to resolve. In X's opinion request, X states s/he told the social worker that she shouldn't be disclosing the assessment at the conference. Conversely, the social worker states, in her affidavit, that X signed a release form in her presence. If X did not sign a release form indicating that the County could release the data in the assessment, the County inappropriately released the data. If X did sign a release form indicating the County could release the data in the assessment, the County appropriately released the data. </p><p> The Commissioner adds the following comments. In situations where either a government entity or a data subject wishes to share private data with another person, and there is no statutory authority to do so, the data subject must sign a written informed consent. (See Minnesota Rules 1205.1400.) Before signing an informed consent, the data subject should read the consent document so s/he knows what data the entity will be releasing and to whom. If the data subject is unable to determine what data the entity will release, s/he should ask the entity to clarify. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that X raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Commissioner is unable to determine whether Stearns County complied with Minnesota Statutes, Chapter 13, when it released data in a parenting assessment to participants in a family group decision making conference. If X did not consent in writing to allow the County to release the data in the parenting assessment, the County inappropriately released the data. If X did consent in writing to allow the County to release the data, the County appropriately released the data. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: September 27, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679822022-01-19T19:21:19Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266754" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-09-27T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, can the Teachers Retirement Association (TRA) provide names and mailing addresses of members and/or retirees to a private vendor with which TRA has contracted to mail retirement-related information?September 27, 2007; Teachers Retirement Association36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><p><strong>Note:</strong><strong> In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong><br /></p><h2> Facts and Procedural History: <br /></h2><p> On August 8, 2007, IPAD received a memorandum dated same from Lori Fiori Hacking, Executive Director of the Teachers Retirement Association (TRA). In her memorandum, Ms. Hacking asked the Commissioner to issue an advisory opinion regarding the classification of certain data TRA maintains. </p><p> A summary of the facts is as follows. In her opinion request, Ms. Hacking wrote: </p><p class="opinion_quote"> TRA occasionally receives requests from external organizations to facilitate mailings to teachers and/or retirees. One example is a committee that would like to contact a particular group of teachers for a class reunion. Another is an employer who would like to contact a group of their former employees, but have lost current addresses for these individuals. While no formal policy exists to address these requests, TRA has generally declined to participate in such mailings. </p><p class="opinion_quote"> However, TRA has worked with retiree groups in the past to facilitate mailing of TRA-related materials, but has concluded that a new policy has to be formulated . . . </p><p class="opinion_quote"> Under the policy, TRA staff may continue to work with constituency groups to conduct mailings in which the Executive Director deems are directly related to TRA's mission and purpose in furthering the interest of its members and benefit recipients. The TRA Executive Director will evaluate these situations on a case-by-case basis. No mailings will be facilitated by TRA that involve promoting political activities or the solicitation of goods and services. </p><p class="opinion_quote"> In all cases, the names and addresses of the members and/or retirees will not be released in any form to the constituent group. TRA will contract with a third party mailing vendor to facilitate mailing of TRA-related material. TRA shall obtain written certification from the vendor that the membership data transmitted to facilitate the mailing remains confidential and not provided to or used by the constituent group or the third party vendor for any other purposes. </p><hr /><br /><h2> Issue: <br /></h2> Based on Ms. Hacking's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, can the Teachers Retirement Association (TRA) provide names and mailing addresses of members and/or retirees to a private vendor with which TRA has contracted to mail retirement-related information? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. </p><p> Pursuant to section 13.63, subdivision 2, the addresses of beneficiaries and survivors of Teachers Retirement Association (TRA) members are private. </p><p> In addition, pursuant to section 13.05, subdivision 3, the use . . . of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government. </p><p> In her opinion request, Ms. Hacking discusses that TRA wishes to mail information that is directly related to TRA's mission and purpose in furthering the interest of its members and benefit recipients. This appears to be consistent with what the Legislature contemplated when it enacted section 13.05, subdivision 3. </p><p> Government entities (subject to Chapter 13) contract with non-government organizations (not subject to Chapter 13) to perform functions on their behalf. Chapter 13 discusses these contractual relationships in several provisions, the most recently-enacted of which is section 13.05, subdivision 11. It states, in part: </p><p class="opinion_quote"> If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. </p><p> Thus, in the contract between TRA and the mailing vendor, TRA must include language clarifying that the private addresses in the hands of the vendor remain subject to the requirements of Chapter 13. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Ms. Hacking raised is as follows: <br /><p /><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, the Teachers Retirement Association (TRA) can provide names and mailing addresses of members and/or retirees to a private vendor with which TRA has contracted to mail retirement-related information. As section 13.05, subdivision 11, prescribes, the contract with the private vendor must contain language specifying that the names and addresses are subject to the requirements of Chapter 13. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: September 27, 2007 </p><hr /><br /><p /></dd></td></tr></tbody></table></body></div>2667542667532022-01-19T19:21:19Z266258266282266283266284266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267617" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-09-26T15:14:43ZDid the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for a February 26, 2007, closed meeting, when the members knew in advance that a portion of the meeting would be closed to consider offers or counteroffers for the purchase of real estate? Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers' public statement given prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies comply with the notice requirements of Minnesota Statutes, section 13D.01? Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with Minnesota Statutes, section 13D.05, when they failed to record the entire closed portion of a meeting on February 26, 2007?September 26, 2007; Middle Snake Tamarac Rivers Watershed District Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On August 14, 2007, IPAD received a letter, dated August 13, 2007, from David Hvistendahl on behalf of his client, James Stengrim. In his letter, Mr. Hvistendahl asked the Commissioner to issue an advisory opinion regarding several issues related to compliance by the Middle-Snake-Tamarac Rivers Watershed District Board of Managers (Board) with the Open Meeting Law, Minnesota Statutes, Chapter 13D. Mr. Hvistendahl submitted the $200.00 fee required by section 13.072.</p> <p>On August 28, 2007, IPAD wrote to Mr. Douglas Sorenson, Chairman of the Board. In its letter, IPAD informed Mr. Sorenson of Mr. Hvistendahl's request and gave the Board an opportunity to explain its position. The Board presented its position in a letter from its attorney, Jeffrey W. Hane, dated September 6, 2007.</p> <p>A summary of the facts as presented by Mr. Hvistendahl is as follows.</p> <p>The Board provided notice for a February 26, 2007, regular meeting in the local newspapers. The notice did not mention that a portion of the February 26, 2007, meeting would be closed.</p> <p>Mr. Hvistendahl provided an audio recording and a partial transcript of the open portion of the February 26, 2007, meeting. The transcript states in relevant part:</p> <p class="opinion_quote">The closed meeting now - uh - pursuant to the statute - we're going to close it for litigation (?) [sic] strategies and theories - uh - actually before we do that we're going to close it - uh - for the purpose of discussing offers and counteroffers for the purchase of sale of land in regard to Section 19 of Brandt Township of Polk County.</p> <p>Mr. Hvistendahl also provided the approved minutes of the February 26, 2007, meeting. The minutes relative to closing the portion of the February 26, 2007, meeting state:</p> <p class="opinion_quote">Mr. Jeff Hane requested that the meeting be closed pursuant to Minnesota Statutes 13D.05 (Subd. 3c) [sic] to develop or consider offers or counteroffers for the purchase or sale of real or personal property in section 19 of Brandt Township; and pursuant to Minnesota Statutes 13D.05 (Subd. 3b) [sic] for purposes of discussing legal theories and strategies regarding the PL-566 litigation, Agassiz Valley Water Resources Management project settlement agreement, and conflict of interest issues.</p> <p>In his opinion request, Mr. Hvistendahl wrote:</p> <p class="opinion_quote">During the closed portion of the February 26th meeting, the Board discussed two topics: (1) whether to make an offer to purchase certain real estate; and (2) certain pending litigation. The Board recorded only a portion of the closed meeting, only that portion of the closed meeting having to do with offers for purchase of real property. The Board shut off the tape, part way through the meeting.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Hvistendahl's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for a February 26, 2007, closed meeting, when the members knew in advance that a portion of the meeting would be closed to consider offers or counteroffers for the purchase of real estate?</li> <li>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers' public statement given prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies comply with the notice requirements of Minnesota Statutes, section 13D.01?</li> <li>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with Minnesota Statutes, section 13D.05, when they failed to record the entire closed portion of a meeting on February 26, 2007?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>There is no dispute between the parties that the Board is subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). As provided in section 13D.01, subdivision 1(c)(3), the Board is required to comply with the OML.</p> <h2>Issue 1:</h2> <p><em>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for a February 26, 2007, closed meeting, when the members knew in advance that a portion of the meeting would be closed to consider offers or counteroffers for the purchase of real estate?</em></p> <p>Minnesota Statutes, section 13D.04, subdivision 5 states:</p> <p class="opinion_quote">The notice requirements of this section apply to closed meetings.</p> <p>It is not disputed that the February 26, 2007, meeting of the Board was a regular meeting. The notice requirements for regular meetings are in section 13D.04, subdivision 1, which states:</p> <p class="opinion_quote">A schedule of the regular meetings of a public body shall be kept on file at its primary offices. If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting.</p> <p>The notice requirement for the closed portion of the February 26, 2007, regular meeting is governed by section 13D.04, subdivision 1. Even though the Board published notice of the February 26, 2007, regular meeting, section 13D.04, subdivision 1 does not require publishing notice of a regular meeting or a closed portion of a regular meeting. The only notice requirement for the February 26, 2007, regular meeting, including the closed portion of the meeting, was a schedule of the Board's regular meetings kept at its primary offices. Neither party provided information as to whether a schedule of the Board's regular meetings is kept on file at its offices; therefore, the Commissioner cannot determine whether the Board complied with the notice requirement for its February 26, 2007, regular meeting, including the closed portion of the meeting.</p> <h2>Issue 2:</h2> <p><em>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers' public statement given prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies comply with the notice requirements of Minnesota Statutes, section 13D.01?</em></p> <p>Minnesota Statutes, section 13D.01, subdivision 3 states:</p> <p class="opinion_quote">Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.</p> <p>The Commissioner addressed the requirements to adequately close meetings in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>:</p> <p class="opinion_quote">This subdivision requires that three things be done before a meeting is closed: (1) a statement be made on the record; (2) specific grounds permitting the closure of the meeting be given; and (3) a description of the subject to be discussed be provided.</p> <p>The audio recording transcript of the February 26, 2007, meeting provided by Mr. Hvistendahl confirms that a statement to close the meeting was made on the record. Therefore, it is undisputed the Board complied with the first requirement to close a meeting.</p> <p>The parties dispute the adequacy of the second and third requirements to close a meeting. The Commissioner further interpreted these requirements in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>:</p> <p class="opinion_quote">According to <em>The American Heritage College Dictionary</em>, Houghton Mifflin Company, Boston 1997, specific means explicitly set forth; definite and grounds means the foundation for an argument, belief, or an action; a basis. Therefore, the Board needs to provide the definite basis for closing the meeting. The easiest way to accomplish this is to cite the statute that gives the Board the authority to close the meeting.</p> <p class="opinion_quote">The final element to be considered is whether the notice that the Board has used describes the subject to be discussed. The Court of Appeals has provided direction on how this language is to be interpreted. In <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471 (Minn. Ct. App. 2004), the Court was asked to decide if a statement that a meeting is being closed for a discussion of pending litigation under the attorney-client privilege met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that attorney client privilege provided the grounds and pending litigation <em>identified</em> the subject to be discussed, but did not <em>describe</em> the subject as required by the statute. <em>The Free Press</em> at 476 (emphasis in the original).</p> <p>In his opinion request, Mr. Hvistendahl wrote:</p> <p class="opinion_quote">The approved minutes [of the February 26, 2007, meeting] are inaccurate. The specific litigation was never mentioned, when the announcement was made to close the meeting.</p> <p>In the Board's response, Mr. Hane wrote:</p> <p class="opinion_quote">What likely occurred is that after Mr. Stengrim stopped tape recording, but prior to the beginning of the closed meeting on the purchase of land, a more specific notice was given to the public concerning which pieces of litigation would be discussed during the closed meeting.</p> <p>Mr. Hane noted that the meeting minutes reflect the specific notice that was given to close the meeting and a majority of the Board members determined the minutes to be correct.</p> <p>This presents a factual dispute that the Commissioner cannot resolve. If the February 26, 2007, meeting minutes reflect the statement that was made to close the meeting, the Board has complied with section 13D.01, subdivision 3. If the audio recording transcript reflects the actual statement to close the meeting, the Board has not complied because it did not provide the specific statutory authority to close the meeting nor describe the subject to be discussed.</p> <h2>Issue 3:</h2> <p><em>Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with Minnesota Statutes, section 13D.05, when they failed to record the entire closed portion of a meeting on February 26, 2007?</em></p> <p>Minnesota Statutes, section 13D.05, subdivision 3(c) states:</p> <p class="opinion_quote">A public body may close a meeting: (3) to develop or consider offers or counteroffers for the purchase or sale of real or personal property. Before holding a closed meeting under this paragraph, the public body must identify on the record the particular real or personal property that is the subject of the closed meeting. The proceedings of a meeting closed under this paragraph must be tape recorded at the expense of the public body.</p> <p>In his opinion request, Mr. Hvistendahl wrote:</p> <p class="opinion_quote">The purpose of a closed meeting is for the protection of the public at large. A court can review such a recording <em>in camera</em>, if certain actions are challenged in court under the Open Meeting Law. Given the particular facts at hand, it was particularly important that the entirety of the February 26th closed meeting be recorded.</p> <p>In the Board's response, Mr. Hane wrote:</p> <p class="opinion_quote">Chapter 13D specifies when a meeting must be tape recorded. <em>See, e.g.,</em> section 13D.03, subdivision 2(a) ( the proceedings of a closed meeting to discuss negotiations strategies shall be tape-recorded , section 13D.05, subdivision 3(c) the proceedings of a meeting closed <strong>under this paragraph</strong> must be tape-recorded. ) (Emphasis added.)</p> <p>While the Commissioner recognizes Mr. Hvistendahl's concern, the plain meaning of the statute supports Mr. Hane's comments. Section 13D.05, subdivision 3(b), which allows meetings to be closed if permitted by the attorney-client privilege, does not contain the same requirement to tape record meetings as is required by section 13D.05, subdivision 3(c). Therefore, the Board was only required to tape record the portion of the February 26, 2007, closed meeting when offers or counteroffers for the purchase or sale of property were discussed.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Hvistendahl raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Commissioner cannot determine whether members of the Middle Snake Tamarac Rivers Watershed District Board of Managers complied with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for its February 26, 2007, regular meeting, including the closed portion of the meeting.</li> <li>The issue of whether the public statement given by the Middle Snake Tamarac Rivers Watershed District Board of Managers prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies complied with the notice requirements of Minnesota Statutes, section 13D.01, is a factual dispute that the Commissioner cannot resolve.</li> <li>The members of the Middle Snake Tamarac Rivers Watershed District Board of Managers complied with Minnesota Statutes, section 13D.05, when they did not record the entire closed portion of a meeting on February 26, 2007.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 26, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676172662892662882662892666492022-01-19T19:21:19Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268022" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-09-14T15:14:43ZDid the Mahnomen County Treasurer comply with Minnesota Statutes, Chapter 13, with regard to a June 11, 2007, request for data?September 14, 2007; Mahnomen County Treasurer36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On July 30, 2007, IPAD received a letter dated same, from Jeff Armstrong. In his letter, Mr. Armstrong asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Mahonmen County Treasurer. </p><p> IPAD, on behalf of the Commissioner, wrote to Brenda Lundon, Mahnomen County Treasurer, in response to Mr. Armstrong's request. The purposes of this letter, dated August 7, 2007, were to inform her of Mr. Armstrong's request and to ask her to provide information or support for the Office's position. On August 13, 2007, IPAD received a response, dated August 9, 2007, from Ms. Lundon. </p><p> A summary of the facts as provided by Mr. Armstrong is as follows. In a letter dated June 11, 2007, he wrote to Ms. Lundon: </p><p class="opinion_quote"> Pursuant to the Minnesota Data Practices Act, I request copies of all documents relating to state county tax assessments on the Shooting Star Casino property belonging to the White Earth Indian Reservation, including but not necessarily limited to relevant correspondence between state/county officials and tribal officials, judicial or administrative determinations of state and county taxation authority, records of all actual tax payments or payments in lieu of taxes by White Earth to the county for aforementioned property, and any relevant formal or informal agreements pertaining thereto between the county and White Earth and/or official accounts of negotiations thereof. </p><p> In his opinion request, Mr. Armstrong wrote: </p><p class="opinion_quote"> . . . My request was directed to the Mahnomen County Treasurer, who forwarded it to the county attorney. My request has not been formally acknowledged . . . I have tried on two occasions to contact the Mahnomen County Attorney, but she has not returned my calls. It seems apparent to me that the county is attempting to deny my request for public information without providing any statutory authority for doing so. . . . </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Armstrong's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Mahnomen County Treasurer comply with Minnesota Statutes, Chapter 13, with regard to a June 11, 2007, request for data? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. </p><p> In her comments to the Commissioner, Ms. Lundon wrote: </p><p class="opinion_quote"> Mr. Armstrong followed up his written request with a phone call about one week after he sent it to me. I recall speaking with him on the phone at that time and acknowledging his request. I informed him that the Treasurer's office only deals with current year information as everything is turned over to the Auditor's office at the end of the year and they are the custodian of the records. . . . I also informed him that we are currently in litigation with the White Earth Reservation over taxation of the Casino property and were advised by our attorneys in handling the case not to give out information regarding it. I also informed him that I had forwarded his request to our County Attorney. My intention in doing that was to have her respond in writing to his request. </p><p class="opinion_quote"> Approximately one month later, I reminded her about this issue . . . She advised me to respond to him and before I did he called me again. At that time I informed him that the County Attorney and I had spoken and we both agreed that I could not give out the information because of litigation. However, we both also felt that we could not deny him access to the information. Therefore, he could come to our courthouse and view the records to glean the information he required. He then asked me a few more questions regarding the litigation and upon my attorney's advice I told him I could not give out any information. </p><p> Ms. Lundon's response to Mr. Armstrong is problematic. First, as required under section 13.03, subdivision 3, Ms. Lundon did not provide Mr. Armstrong with the statutory citation upon which her Office is relying to deny access to the data. From her comments, it appears as if the Treasurer's Office may be basing its decision on section 13.39, civil investigative data. This section can be employed only if the chief attorney has determined that a civil legal action is pending. Civil investigative data are confidential/protected nonpublic while the investigation is active. </p><p> Second, Ms. Lundon appears to have informed Mr. Armstrong that he can inspect the data but cannot get copies of the data; the statutory basis for which is unclear. Generally, when data are classified as confidential/protected nonpublic, members of the public are not allowed to inspect or get copies of the data - both types of access are restricted. Conversely, if Mr. Armstrong can inspect the data, he should be able to get copies of the data. For the reasons stated above, the Treasurer's Office did not comply with Chapter 13 in regard to Mr. Armstrong's request for data. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Armstrong raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Mahnomen County Treasurer did not comply with Minnesota Statutes, Chapter 13, with regard to a June 11, 2007, request for data.</td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: September 14, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2680222022-01-19T19:21:19Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266979" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-08-16T15:14:43ZAre the data on the videotape classified as private educational data pursuant to Minnesota Statutes, section 13.32 and/or private personnel data pursuant to Minnesota Statutes, section 13.43?August 16, 2007; School District 709 (Duluth)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On May 17, 2007, IPAD received a letter from Michael Waldspurger and Amy Mace, attorneys representing Independent School District 709, Duluth. In their letter, Mr. Waldspurger and Ms. Mace asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD asked for clarification, which Mr. Waldspurger and Ms. Mace provided in a letter dated June 15, 2007.</p> <p>A summary of the facts is as follows. In their opinion request, Mr. Waldspurger and Ms. Mace wrote:</p> <p class="opinion_quote">The School District regularly videotapes certain locations within its schools. ... One of the locations routinely taped in [a District school] is the school's gymnasium. ... The security cameras are programmed to tape any activity in the gymnasium, regardless of whether the activity is open or closed to the public.</p> <p class="opinion_quote">[An athletic event was held.] The ... video shows an incident involving [a student] that occurred after the [athletic event]. The incident occurred between [the student] and an adult [who was not acting as a District employee during the event] ... The athletic event was open to the public. ...</p> <p class="opinion_quote">Besides the [student] and the adult who engaged in the interaction, the surveillance video contains images of other students of the School District, District employees, and public spectators. Although the surveillance video is fuzzy, because the [student] in question attends school in the District and thus knows various students and staff members, [s/he] would be able to identify students and employees of the District who are shown on the video.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Waldspurger and Ms. Mace's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Are the data on the videotape classified as private educational data pursuant to Minnesota Statutes, section 13.32 and/or private personnel data pursuant to Minnesota Statutes, section 13.43?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Data that school districts maintain are government data. (See Minnesota Statutes, section 13.02, subdivision 11.)</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Generally, section 13.32 and provisions of the federal Family Educational Rights and Privacy Act (FERPA) (see 20 U.S.C. section1232g, and its implementing Rules, 34 CFR Part 99) classify data about students as private. One of the exceptions is that any data a school district designates as directory information are public.</p> <p>Data about individuals who are employees of a government entity are classified pursuant to section 13.43.</p> <p>At issue before the Commissioner is whether some of the data in a videotape the District created at a public athletic event are classified as private educational and/or personnel data. The Commissioner addressed a similar issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447#/detail/appId/1/id/267834" title="03-010" target="_blank">Advisory Opinion 03-010</a>:</p> <p class="opinion_quote">The answer to the second part of Issue 2, i.e., a videotape the District made at a public event, such as an athletic contest that is open to the public, is more complicated. If the District has designated photographs and other types of information about athletes as directory information, it seems fairly clear the data on the videotape are public. However, if that is not the case and some of the data on the videotape are private, the District's refusal to release the tape may create an absurd result. By agreeing to participate in an event held at a public place, the students and any employee coaches have, in effect, given consent for data about them to be released. The fact that the District videotaped the athletic contest does not change the practical effect of the students and coaches agreeing to participate, i.e., who participated, how they participated, and what happened is all public.</p> <p>The Commissioner's position has not changed. Here, because the athletic event was open to the public, any incidents that occurred during the event could have been viewed by any of the people in attendance. Thus, although certain data in the videotape may be private, the students and employees present at the event - either as participants or spectators - have, in effect, given consent for data about them to be released.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Waldspurger and Ms. Mace raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Although a videotape of a public event, such as an athletic contest that is open to the public, may contain private data, practically speaking, the data subjects have given consent to release those data by participating in the event. Therefore, the data in the videotape are not classified as private educational data pursuant to Minnesota Statutes, section 13.32 and/or private personnel data pursuant to Minnesota Statutes, section 13.43.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 16, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2669792663172022-01-19T19:21:18Z266258266259266520266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267822" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-07-11T15:14:43ZIn responding to a March 28, 2007, data request, did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data? Did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer?July 11, 2007; Sherburne County Sheriff36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On May 22, 2007, IPAD received two letters dated May 12, 2007, from Greg LaFond. In his letters, Mr. LaFond asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Sherburne County Sheriff's Office.</p> <p>IPAD, on behalf of the Commissioner, wrote to Bruce Anderson, Sheriff, in response to Mr. LaFond's request. The purposes of this letter, dated May 30, 2007, were to inform him of Mr. LaFond's request and to ask him to provide information or support for the Office's position. On June 7, 2007, IPAD received a response, dated June 6, 2007, from Scott Lepak, an attorney representing the Sheriff's Office.</p> <p>A summary of the facts as provided by Mr. LaFond is as follows. Regarding the first issue, in a letter dated March 28, 2007, Mr. LaFond's attorney wrote to the Sheriff. Of relevance here, he asked to inspect various data related to an employee of the Sheriff's Office.</p> <p>In a letter dated April 20, 2007, Mr. Lepak responded on behalf of the Sheriff's Office. Contained in the letter were data requested by Mr. LaFond.</p> <p>In his opinion request, Mr. LaFond wrote, . . . The request specifically asked that a number of documents be made available for <u>inspection and potential copying</u>. At no time did [my attorney] request copies of these documents of . . . internally prepared summaries of selected information. (Emphasis provided.)</p> <p>Regarding the second issue, also in the March 28, 2007, request, Mr. LaFond's attorney asked to inspect daily logs and incident reports submitted by an employee of the Sheriff's Office during a certain time period.</p> <p>In the April 20, 2007, letter, Mr. Lepak wrote, The County does not appear to maintain incident data by deputy. It does maintain incident data by department. By law these data are classified as active or inactive. Mr. Lepak included instructions as to how Mr. LaFond could obtain the data.</p> <p>In his opinion request, Mr. LaFond wrote, . . . it is inconceivable that a law enforcement agency would not require patrol officers to complete daily logs.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. LaFond's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>In responding to a March 28, 2007, data request, did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data?</li> <li>Did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>In responding to a March 28, 2007, data request, did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data?</em></p> <p>In his comments to the Commissioner, Mr. Lepak wrote:</p> <p class="opinion_quote">. . . the requested information . . . involves personnel data pursuant to Minn. Stat. Sec. 13.43 and is private data unless specifically listed as public data. . . . Accordingly, in regard to these requests, the County is required to establish appropriate safeguards for all records containing data on individuals. . . . In the present case, the security safeguard was to separate the public from the private data. (Note that the County did not charge for this task . . .) It is the County's position that it fully complied with the data practices act by separating this data and providing the public information to Mr. LaFond. In those instances where information existed but was not provided, the letter notes that the requests for private data on the individual was [sic] denied pursuant to Minn. Stat. Sec. 13.43. . . .</p> <p>Pursuant to Minnesota Statutes, section 13.03, individuals have the right to request and gain access to public government data. Here, Mr. LaFond asked for certain data about an employee, some of which are public and some of which are not public. While Mr. Lepak is correct that government entities have an obligation to keep data on individuals secure, that obligation is not meant to supersede the requirement that, in responding to data requests, entities make the actual data available. (One exception, that does not apply here, is when the data are law enforcement data - see section 13.82, subdivision 16.) In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866" title="04-031" target="_blank">Advisory Opinion 04-031</a>, the Commissioner wrote:</p> <p class="opinion_quote">Section 13.03, subdivision 3, states that individuals shall be permitted to inspect and copy public government data. This means that when an individual asks to inspect public data, the entity shall provide the requestor with the actual data. This ensures that the requestor will be able to gain an understanding of the context relating to the data s/he is seeking, especially if the entity has redacted (blacked/whited out) surrounding data.</p> <p class="opinion_quote">In situations where a particular document contains both public and not public data, and an individual has requested access to the public data, the entity might, for example, choose to copy the document, redact the not public data, and make the redacted copy available for the individual to inspect. The Commissioner is aware that some entities might prefer to lift public data from a document and place those data on an otherwise blank document for the individual to inspect (cut-and-paste). This is problematic because (1) the entity is withholding the actual data and (2) the possibility exists that the entity will make an error transferring the data from its original source onto another document.</p> <p>Here, the Sheriff's Office did not comply with Chapter 13 when it copied the data into a response rather than allowing Mr. LaFond and/or his attorney the opportunity to inspect the actual physical data.</p> <p>Finally, the Commissioner notes that inspection of data always is free and even if Mr. LaFond's attorney had asked for copies, the Sheriff's Office could not have charged the cost of separating the public from not public data.</p> <h2>Issue 2:</h2> <p><em>Did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer?</em></p> <p>As stated above in the Facts section, the Office's response was that it does not maintain incident data by deputy/officer. Mr. Lepak added that Mr. LaFond and/or his attorney could inspect the data as they are maintained - by department.</p> <p>In his comments to the Commissioner, Mr. Lepak wrote, . . . the County responded . . . by simply notifying Mr. LaFond that he could inspect the public data by setting up an appointment. It is reasonable, in light of the potential volume of the data requested, to provide prior notice to the County of when Mr. LaFond would like to review this data so that the information may be made available.</p> <p>If, indeed, none of the daily logs/incident reports contain data that identify responding officers, the Office's response to Mr. LaFond's attorney is appropriate. However, by not maintaining these data so they are connected to officers who respond to particular calls for service, it is possible the Office is not in compliance with Minnesota Statutes, section 15.17, commonly known as the Official Records Act. Section 15.17 requires government officials to make and preserve all records that document their official activities. Data that are official records must be maintained for periods of time as prescribed in record retention schedules. Knowing which officers respond to which calls and the details of what happened would seem critical for documenting action by the Office.</p> <p>Further, if the Sheriff's Office, in maintaining the daily logs/incident reports by department, has a notation in the documents that identifies responding officers, the Office should provide to Mr. LaFond the documents related to the inquired-about officer. As the Commissioner wrote in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267419" title="06-029" target="_blank">Advisory Opinion 06-029</a>:</p> <p class="opinion_quote">. . . The fact that the Office cannot easily locate grievances filed against the County Attorney should not significantly affect the response time. Chapter 13 confers upon individuals the right to request and gain access to data. The Committee asked for specific data - labor grievances filed against Amy Klobuchar - and the Office is obliged to provide those data regardless of how they are filed.</p> <p>Thus, the Office's reply complied with Chapter 13 only if none of the daily logs/incident reports contain data that identify responding officers.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. LaFond raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>In responding to a March 28, 2007, data request, the Sherburne County Sheriff did not comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data.</li> <li>The Sherburne County Sheriff complied with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer only if none of the daily logs/incident reports contain data that identify the officer.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: July 11, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678222666552669832663692022-04-27T22:00:59Z266258266282266282266282266283266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267355" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-06-27T15:14:43ZDid the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, subdivision 2, when it posted a notice for a special meeting on September 13, 2006, that contained the statement "Other Legal issues may be discussed?" Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney? Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 5 when it limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board? Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007?June 27, 2007; Hampton Township Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On May 10, 2007, IPAD received a letter, dated May 7, 2007, from James R. McKenzie. In his letter, Mr. McKenzie asked the Commissioner to issue an advisory opinion regarding several issues related to how the Hampton Township Board of Supervisors (the Board) complies with the Open Meeting Law, Minnesota Statutes, Chapter 13D. Mr. McKenzie submitted the $200.00 fee required by section 13.072.</p> <p>On May 15, 2007, IPAD wrote to Mr. Pat Ramel, chair of the Board. In its letter, IPAD informed Mr. Ramel of Mr. McKenzie's request and gave the Board, or any of its members, an opportunity to explain the Board's position. The Board presented its position in a letter from its attorney, Troy J. Gilchrist, dated June 1, 2007.</p> <p>Mr. McKenzie presented facts relating to the Board's compliance on several different issues. The general nature of the facts is summarized here; additional facts needed to address the issues can be found in the Discussion section below. The facts are summarized here according to the order in which the issues will be addressed.</p> <p>Prior to holding a special meeting on September 13, 2006, the Board gave notice of the meeting. Two versions of the notice were issued. Along with the date, time and location of the meeting, the second notice stated that the purpose of the meeting was to . . . discuss the Land issue with the Township's Attorney. Other Legal issues may be discussed. At the September 13, 2006, meeting, the Township's attorney was called away unexpectedly. Before he left, the Board Chair, and then later the two other supervisors, talked to the Township attorney in the parking lot.</p> <p>Between August 17, 2006 and March 26, 2007, Mr. McKenzie made numerous requests for access to the journals of votes. The Board responded by stating that the journals are kept at the Town Hall and access could occur on the night of any regular Board meeting.</p> <p>At meetings on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007, and April 17, 2007, the Board received reports on planning and zoning issues. As part of the presentation, Board members received a written report from the presenter. No copy of the report was made available to the public in the meeting room at any of the listed meetings.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. McKenzie's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, subdivision 2, when it posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed?</li> <li>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney?</li> <li>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 5 when it limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board?</li> <li>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Before turning to the issues raised by Mr. McKenzie, it is necessary to establish that the Board is subject to the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. According to Minnesota Statutes, section 13D.01, subdivision 1(b)(5), the governing body of a town is subject to the requirements of the OML. Therefore, the Board is subject to Chapter 13D.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); see <em>St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).</p> <p><em>Prior Lake American</em> at 735. With this background and the Court's instruction to construe the law in favor of public access, the next step is to review the issues presented by Mr. McKenzie.</p> <h2>Issue 1:</h2> <p><em>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, subdivision 2, when it posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed?</em></p> <p>Prior to conducting a special meeting, the Board is required to post a notice that must meet certain requirements. Section 13D.04, subdivision 2(a) states:</p> <p class="opinion_quote">For a special meeting, except an emergency meeting or a special meeting for which a notice requirement is otherwise expressly established by statute, the public body shall post written notice of the date, time, place, and purpose of the meeting on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room.</p> <p>The Commissioner has previously opined that for the notice to be effective and meet the direction of the Supreme Court in the <em>Prior Lake</em> case, the notice must provide detail about the purpose of the meeting. See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267471" title="04-004" target="_blank">04-004</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267582" title="04-057" target="_blank">04-057</a>.</p> <p>The township's attorney argues that the statutory requirements were met. However, in order for the Board to be able to give notice to those who have requested notice about special meetings for specific purposes, more detail is needed than was provided before the September 13th meeting. <em>See</em> section 13D.04, subdivision 2(b). Mr. Gilchrist outlined five different legal issues that the Board discussed at the September 13th meeting. Without a more specific notice, there is no way for the members of the public to know what will be discussed and whether they should attend a special meeting. The public also had no way of knowing that these were the five legal issues that would be discussed.</p> <p>Mr. Gilchrist also argues that the concepts of new business and old business that apply in a regular meeting should apply to a special meeting. However, the public knows that any business can be discussed at a regular meeting of the Board. The September 13th meeting was a special meeting and different rules apply. Specifically, the Board is limited to the topics listed in the notice of special meeting. The phrase other legal issues does not give notice that the Board would, and did, discuss a traffic issue, enforcement of a zoning provision, the duties of the planning commission, review of permits issued under the zoning code and cutting weeds.</p> <p>Construing the requirements in section 13D.04, subdivision 2 in favor of public access, the notice for the September 13th special meeting was not sufficient and the Board was not in compliance with section 13D.04, subdivision 2.</p> <h2>Issue 2:</h2> <p><em>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney?</em></p> <p>The Minnesota Supreme Court has held that a gathering of a quorum or more of the members of a public body like the Board is a meeting for purposes of Chapter 13D and the requirements of that chapter must be met. <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 518 (Minn. 1983). In other words, the meeting needs to be conducted in a way that allows the public the opportunity to see and hear what is occurring. <em>Prior Lake American</em> at 735.</p> <p>Mr. McKenzie has presented facts that indicate that at the special meeting on September 13th, then Board Chair Donna Otto told the other two supervisors to step outside to talk to the township's attorney . . .about that land deal, we can't do as we planned. On behalf of the Board, Mr. Gilchrist acknowledges that it . . .would likely be a violation of the open meeting law for a quorum of the Town Board to gather in the Town Hall parking lot to discuss Town business. . . . He goes on to state that a discussion of town business did not occur when the two supervisors went out to meet with the attorney.</p> <p>While this is a factual dispute the Commissioner is unable to resolve, it is difficult to understand how Town business was not discussed as the specific direction by the Board Chair was for the two other members of the Board to talk about the land deal, the specific reason the special meeting was occurring. The Commissioner encourages the members of the Town Board not to act in ways that could be construed as violations of the Open Meeting Law, such as having a quorum adjourn to the Town Hall parking lot with the Town's attorney.</p> <p>Because of the factual dispute, however, the Commissioner is unable to determine whether a violation of Chapter 13D occurred.</p> <h2>Issue 3:</h2> <p><em>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 5 when it limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board?</em></p> <p>Chapter 13D requires that the Board keep a journal of votes (section 13D.01, subdivision 4) and also requires that the public have access to that journal. The pertinent language states:</p> <p class="opinion_quote">The journal must be open to the public during all normal business hours where records of the public body are kept.</p> <p>Section 13D.01, subdivision 5. Chapter 13D does not contain a definition for the term business hours nor is there any case law interpreting what it means. However, the Supreme Court has consistently interpreted the provisions of Chapter 13D in favor of public access. <em>See</em><em>Prior Lake American</em> at 735 (above).</p> <p>Mr. Gilchrist argues that because Hampton Township does not have any employees and because the journal is kept at the Town Hall, it is appropriate that access to the journal be limited to the night of the Board's monthly meeting. As an alternative, copies can be obtained any time during the month by contacting the Town Clerk.</p> <p>Mr. McKenzie argues that sections 365.55 and 367.11 control the location of the journal and that Hampton Township does not maintain its journal in the proper place. Each section will be reviewed in turn.</p> <p>Section 365.55 states:</p> <p class="opinion_quote">The town clerk is clerk of the town meeting and shall keep full minutes of its proceedings. The minutes must contain the full text of every order, direction, and rule made by the meeting. If the town clerk is absent, the voters present shall elect a clerk of the meeting. The minutes of the meeting must be signed by the clerk of the meeting and by the judges. The minutes must be filed in the office of the town clerk within two days after the meeting.</p> <p>While section 365.55 directs that minutes be filed in the office of the town clerk, there is no direction about where that office is to be located. In addition, section 365.55 is about meetings of all residents in a township, not meetings of the Town's Board.</p> <p>The parts of section 367.11 that are pertinent to minutes and journals state:</p> <p class="opinion_quote">It shall be the duty of the town clerk: <br /> (1) to act as clerk of the town board and keep in the clerk's office a true record of all of <br /> its proceedings; <br /> (2) unless otherwise provided by law, to have custody of the records, books, and papers of the town and file and safely keep all papers required by law to be filed in the clerk's office; <br /> (3) to record minutes of the proceedings of every town meeting in the book of town records and enter in them at length every order or direction and all rules and regulations made by the town meeting; . . . .</p> <p>Again, there are directions to keep records in the clerk's office, but no direction on where that office is to be maintained. Without that direction, it appears that the Board can choose where the clerk's office will be located. In Hampton Township, it appears that the Board has chosen the Town Hall as the location of the clerk's office.</p> <p>Given the Supreme Court's direction to construe Chapter 13D in favor of public access, it is the Commissioner's opinion that restricting public access to the journals to the night of the monthly Board meeting is not in compliance with Chapter 13D. The Board should establish more times when the journals are available at the Town Hall or consider changing the location where the journal is stored to one that allows requesters more access.</p> <p>It is the Commissioner's opinion that the Board is not in compliance with section 13D.01, subdivision 5 when it restricts access to the Town's journals to one night per month.</p> <h2>Issue 4:</h2> <p><em>Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007?</em></p> <p>Section 13D.01, subdivision 6(a) states:</p> <p class="opinion_quote">In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:</p> <p class="opinion_quote">(1) distributed at the meeting to all members of the governing body; <br /> (2) distributed before the meeting to all members; or <br /> (3) available in the meeting room to all members;</p> <p class="opinion_quote">shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.</p> <p>Mr. McKenzie has indicated that at five different meetings in late 2006 and early 2007, presentations were made to the Board that included the distribution of materials to members of the board but no copies were available for the public to review. Mr. Gilchrist stated that the materials in question involve work by a contractor charged with enforcing official controls of the Town. Mr. Gilchrist further argues that the names of the parties against whom enforcement actions were pending are confidential and that other materials in the reports were secret or confidential information as identified by the company.</p> <p>For a government entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, the resolution of this issue would be straightforward as the provisions in Chapter 13 would direct an outcome on the classification and accessibility. However, Hampton Township is not subject to Chapter 13. <em>See </em><a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267231" title="06-007" target="_blank">Advisory Opinion 06-007</a>. Therefore, there are no statutes that resolve the classification and access issue that has been presented.</p> <p>Given the absence of statutory direction, the Commissioner will follow the language in section 13D.01, subdivision 6 and the direction provided in <em>Prior Lake American</em> to construe provisions of the OML in favor of public access. Although the Commissioner was not provided a copy of the materials in question, the fact that the company distributed the materials to the members of the Board indicates that the content is not protected. According to the common law governing trade secrets, protecting the information is one of the requirements for finding that a trade secret exists. The conclusion that the materials are not trade secrets is further enforced by the Town Clerk who provided copies of the February, March and April, 2007, reports to Mr. McKenzie. Therefore, the Commissioner is of the opinion that nothing in the reports is protected and so the reports should have been accessible in the meeting room during each meeting for the public to review.</p> <p>It is not clear why the December 2006, and January 2007, reports were not sent to Mr. McKenzie. Given the disclosure of some of the reports, the Commissioner urges the Town Clerk to send the remaining reports to Mr. McKenzie.</p> <p>It is the Commissioner's opinion that the Board was not in compliance with section 13D.01, subdivision 6 at each of the meetings in 2006 and 2007 because copies of the zoning reports were not available in the meeting room for the public to review.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. McKenzie raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.04, subdivision 2, when they posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed.</li> <li>The Commissioner is unable to determine if the members of the Hampton Township Board of Supervisors complied with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney.</li> <li>The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.01, subdivision 5 when they limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board.</li> <li>The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 27, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673552663452662902663462662552022-01-19T19:21:18Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266948" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-05-22T15:14:43ZDid the City of Thief River Falls comply with Minnesota Statutes, Chapter 13, when it did not release the make, year, and model of vehicles involved in traffic accidents? May 22, 2007; City of Thief River Falls36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On March 28, 2007, IPAD received a letter dated same, from David Hill, on behalf of two newspapers, the <i>Thief River Falls Times and Northern Watch</i>. In his letter, Mr. Hill asked the Commissioner to issue an advisory opinion regarding the newspapers' right to gain access to certain data from the City of Thief River Falls. IPAD requested clarification, which was provided April 12, 2007. </p><p> IPAD, on behalf of the Commissioner, wrote to Jodie Torkelson, Administrator, in response to Mr. Hill's request. The purposes of this letter, dated April 13, 2007, were to inform her of Mr. Hill's request and to ask her to provide information or support for the City's position. On April 23, 2007, IPAD received a response, dated April 19, 2007, from Delray Sparby, Assistant City Attorney. </p><p> A summary of the facts as provided by Mr. Hill is as follows. In a letter dated March 20, 2007, Mr. Sparby wrote to Mr. Hill: </p><p class="opinion_quote"> This letter is in follow-up to your recent correspondence requesting that law enforcement reports of accidents include the make, year and model of vehicles. </p><p class="opinion_quote"> Minnesota Statutes, Section 13.82, Subd. 6, addresses response or incident data, which specifically includes data created or collected by law enforcement agencies in response to traffic accidents and classifies certain categories of such data as public government data. </p><p class="opinion_quote"> The statute does not list the make, year or model of the vehicle as public government data subject to disclosure. . . . </p><p> In his opinion request, Mr. Hill wrote: </p><p class="opinion_quote"> Recently, the [City] devised what is described as incident data report worksheets to assist employees of the [City] prepare information for release to news media . . . </p><p class="opinion_quote"> Shortly after the new incident report documents came into use [the newspapers] . . . expressed our objection to the absence of make, year and model of vehicles involved in accident [sic] from the reports. Up until that point, it had been the regular practice of law enforcement agencies . . . to include such data in incident reports. It is still data that is created and collected by [the City]. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Hill's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Did the City of Thief River Falls comply with Minnesota Statutes, Chapter 13, when it did not release the make, year, and model of vehicles involved in traffic accidents?</td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. </p><p> Data collected and maintained by law enforcement agencies are classified pursuant to section 13.82. Some law enforcement data are public, some are private, and some are confidential/protected nonpublic. </p><p> Minnesota Statutes, section 169.09, relates to traffic accidents. It states that peace officers who investigate certain types of traffic accidents must report specific information to the Commissioner of the Minnesota Department of Public Safety (DPS). (See section 169.09, subdivision 8.) Language in subdivision 13 of section 169.09 discusses that the reports and supplemental information are used primarily for accident analysis purposes. </p><p> In addition, subdivision 13 of section 169.09 places restrictions on the use of and access to data in accident reports but provides situations in which certain data may be disclosed. Clause (d) of subdivision 13, states, Disclosing any information contained in any accident report, except as provided in this subdivision, section 13.82, subdivision 3 [request for service data] or 6 [response or incident data], or other statutes, is a misdemeanor. </p><p> In his comments to the Commissioner, Mr. Sparby wrote: </p><p class="opinion_quote"> The question from the [City's] standpoint is the interaction of 169.09 with 13.82, in regard to the disclosure of information and/or data of the same type that is contained in the State Accident Report Forms. . . . </p><p class="opinion_quote"> The required State accident reports list the make model and year of the vehicles involved and therefore would constitute data contained in an accident report. Neither, Minnesota Statute 13.82, Subd. 3, nor Subd. 6, address or specifically include the make, year or model of the vehicle(s) as public government data always subject to disclosure. </p><p class="opinion_quote"> The [City] Law Enforcement Officers also put the State accident information data, or portions thereof, into other reports created or collected as part of a response to a traffic accident (ie. incident reports, call for services documentation, police response reports, etc.). The question then becomes whether the statutory confidential designation regarding all reports, supplemental information and data required to be reported under Section 169.09 . . . extends to the same information and/or data when said information or data is contained in other written material or reports (ie. incident reports, call for services, police response reports, etc.). </p><p class="opinion_quote"> It appears to be an anomaly that data collected in reference to the same incident would be classified as confidential in one form, but would lose its confidential status because it is merely reported in a different written format. . . . </p><p class="opinion_quote"> The concern from the governmental view is the exposure to liability and the confusing aspect that the provision of same data contained in the required State accident reports, albeit in a different format from the State accident report itself, may be construed as a misdemeanor violation of Section 169.09, Subd. 13 (d). </p><p> The Commissioner is aware that many agencies have questions about how to classify data relating to traffic accidents. The Commissioner provides her analysis below but believes it would be best for the Legislature to clarify its intent on these matters. </p><p> Pursuant to the relevant language in section 169.09, subdivision 13(d), law enforcement agencies <i>may not disclose information contained in any accident report</i>, (except for those types of data listed in section 13.82, subdivision 3 [request for service] or 6 [response or incident]). The Commissioner's interpretation is that this clause refers to the data only as they are located in the DPS traffic accident report documents. In other words, although neither the accident report documents nor the data in them can be released (with the exception of any request for service or response or incident data), if law enforcement agencies maintain the same data elsewhere in incident reports, call for service reports, police response reports, etc., the data in those other reports, databases, etc., are classified pursuant to section 13.82. Unless there is an active criminal investigation, most data classified by section 13.82 are public. </p><p> The opposite conclusion, that data maintained in call or response records that also have been included on the DPS traffic accident report documents are not public, is problematic given the Legislature's clear intent that most data maintained by law enforcement agencies are public. Again, the Commissioner encourages interested parties to solicit legislative clarification. She notes this situation illustrates the difficulties in classifying a document as opposed to classifying the data that exist within a document. Most, if not all, of the provisions in Chapter 13 classify data rather than documents. </p><p> Mr. Hill's question is whether the make, year, and model of vehicles involved in traffic accidents are public. If the City maintained these data on only the DPS traffic accident report documents, pursuant to section 169.09, subdivision 13(d), the City could release only those types of data listed as request for service or response or incident data in section 13.82, subdivisions 3 and 6. Vehicle make, year, and model are not listed specifically as request for service, or response or incident data. Therefore, the City would not be required to release the data. </p><p> However, as Mr. Sparby wrote, the City maintains the vehicle data in forms, reports, etc., other than the DPS traffic accident report documents. Thus, the data are classified pursuant to section 13.82, rather than section 169.09. If there is an active criminal investigation involving the vehicle data, the City can protect the data pursuant to section 13.82, subdivision 7. If there is not an active criminal investigation involving the vehicle data, it appears the City must release the data. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issues that Hill raised is as follows: <p /><p><br /></p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">The City of Thief River Falls maintains the make, year, and model of vehicles involved in traffic accidents in reports other than the DPS traffic accident report documents. <p> Therefore, if there was an active criminal investigation involving data about a particular vehicle, the City did comply with Minnesota Statutes, Chapter 13, when it did not release the data. But, if there was no active criminal investigation involving data about a particular vehicle, the City did not comply with Chapter 13 when it did not release the data. </p></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: May 22, 2007 </p><hr /><p /><p><br /></p></dd></div></td></tr></tbody></table></body></div>2669482663042022-01-19T19:21:18Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267967" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-05-16T15:15:43ZDid the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #2 of the data request)? Did the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data relating to the Ramsey County Jail (all data listed under #3 of the data request)?May 16, 2007; Ramsey County Sheriff36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On April 5, 2007, IPAD received a letter dated April 3, 2007, from X. In X's letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data from the Ramsey County Sheriff's Office. </p><p> IPAD, on behalf of the Commissioner, wrote to Bob Fletcher, Ramsey County Sheriff, in response to X's request. The purposes of this letter, dated April 11, 2007, were to inform him of X's request and to ask him to provide information or support for the Office's position. The Commissioner did not receive a response. </p><p> A summary of the facts as provided by X is as follows. In a letter dated February 15, 2007, X wrote to Sheriff Fletcher and asked for copies of certain data that appear to be related to a criminal investigation and copies of certain data related to the Ramsey County jail. </p><p> In a letter dated March 8, 2007, X wrote again to Sheriff Fletcher and asked for the data s/he requested in the February 15, 2007, letter. </p><p> In the opinion request, X wrote: </p><p class="opinion_quote"> On February 15, 2007 I submitted a letter requesting access to data about myself under [Chapter 13] to Bob Fletcher assuming that he is the responsible authority for the Ramsey County Sheriff's Department. I requested from him data about myself that was obtained by . . . a Deputy with the Ramsey County Sheriff's Department. With no response from him I submitted a second request on March 8, 2007, today's date is April 3, 2007 and I have not receive [sic] a response from him. . . . </p><p class="opinion_quote"> On February 15, 2007 I submitted a letter requesting access to data about myself under [Chapter 13] to Bob Fletcher, assuming that he is the responsible authority for the Ramsey County Jail. I requested from him data about myself that was obtained by personnel from the Ramsey County Jail. With no response from him I submitted a second request on March 8, 2007, today's date is April 3, 2007 and I have not receive [sic] a response from him. . . . </p><hr /><br /><h2> Issues: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issues: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> Did the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #2 of the data request)? </li><p /><li> Did the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data relating to the Ramsey County Jail (all data listed under #3 of the data request)? </li></ol></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><h2> Issue 1: </h2><p><em> Did the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #2 of the data request)? </em></p><p> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. </p><p> It appears the data listed under #2 of X's data request are law enforcement data classified pursuant to section 13.82. Some law enforcement data are public, some are private, and some are confidential. </p><p> Regarding any data of which X is the subject, X is entitled to gain access to the data classified as public and private. The Sheriff's Office should have provided a response to X about these data within ten business days. (See section 13.04, subdivision 3.) X first made a request for the data in a letter dated February 15, 2007. As of the date of X's opinion request, over six weeks later, apparently X had not received any response. The Sheriff's Office did not comply with Chapter 13. </p><p> Regarding any data of which X is not the subject, X is entitled to gain access to the data classified as public. The Sheriff's Office should have provided a response to X about these data in a prompt and appropriate manner, and within a reasonable time. (See section 13.03, subdivision 2, and Minnesota Rules 1205.0300.) Again, by not providing any response to X before April 11, 2007, the Sheriff's Office did not comply with Chapter 13. </p><h2> Issue 2: </h2><p><em> Did the Ramsey County Sheriff comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data relating to the Ramsey County Jail (all data listed under #3 of the data request)? </em></p><p> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. </p><p> It appears the data listed under #3 of X's data request are corrections and detention data classified pursuant to section 13.85. Some corrections and detention data are classified as public, some are private, and some are confidential. </p><p> Regarding any data of which X is the subject, X is entitled to gain access to the data classified as public and private. The Sheriff's Office should have provided a response to X about these data within ten business days. (See section 13.04, subdivision 3.) X first made a request for the data in a letter dated February 15, 2007. As of the date of X's opinion request, over six weeks later, apparently X had not received any response. The Sheriff's Office did not comply with Chapter 13. </p><p> Regarding any data of which X is not the subject, X is entitled to gain access to the data classified as public. The Sheriff's Office should have provided a response to X about these data in a prompt and appropriate manner, and within a reasonable time. (See section 13.03, subdivision 2, and Minnesota Rules 1205.0300.) Again, by not providing any response to X before April 11, 2007, the Sheriff's Office did not comply with Chapter 13. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issues that X raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> The Ramsey County Sheriff's Office did not comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #2 of the data request). </li><p /><li> The Ramsey County Sheriff's Office did not comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data relating to the Ramsey County Jail (all data listed under #3 of the data request). </li></ol></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: May 16, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679672022-01-19T19:21:16Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267704" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-05-16T15:14:43ZDid the Metro Gang Strike Force comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #1 of the data request)?May 16, 2007; Metro Gang Strike Force36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On April 5, 2007, IPAD received a letter dated April 3, 2007, from X. In X's letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data from the Minnesota Gang Strike Force. (The Commissioner notes this organization is now the <i>Metro</i> Gang Strike Force.) </p><p> IPAD, on behalf of the Commissioner, wrote to Bob Fletcher, Ramsey County Sheriff, in response to X's request. The Commissioner is under the impression that Sheriff Fletcher is the responsible authority for the Strike Force. The purposes of this letter, dated April 11, 2007, were to inform him of X's request and to ask him to provide information or support for the Office's position. The Commissioner did not receive a response. </p><p> A summary of the facts as X provided them is as follows. In a letter dated February 15, 2007, X wrote to Sheriff Fletcher and asked for copies of certain data that appear to be related to a criminal investigation. </p><p> In a letter dated March 8, 2007, X wrote again to Sheriff Fletcher and asked for the data s/he requested in the February 15, 2007, letter. </p><p> In the opinion request, X wrote: </p><p class="opinion_quote"> On February 15, 2007 I submitted a letter requesting access to data about myself under [Chapter 13] to Bob Fletcher, assuming that he is the responsible authority for the [Metro] Gang Strike Force. . . . With no response from him I submitted a second request on March 8, 2007, today's date is April 3, 2007 and I have not receive [sic] a response from him. . . . </p><hr /><br /><h2> Issue: <br /></h2> Based on X's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Metro Gang Strike Force comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #1 of the data request)? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> The following analysis is based on the understanding that the Metro Gang Strike Force is a joint powers entity created by multiple counties and cities. (See Minnesota Statutes, section 471.59 - joint exercise of powers.) The Commissioner also understands that Ramsey County is the fiscal agent for the Strike Force and that Sheriff Fletcher is the responsible authority. As previous advisory opinions have discussed, for the purposes of Minnesota Statutes, Chapter 13, a joint powers entity is a statewide system. Therefore, the Strike Force is subject to the requirements of Chapter 13. </p><p> It appears the data X requested are law enforcement data classified pursuant to section 13.82. Some law enforcement data are public, some are private, and some are confidential. </p><p> Regarding any data of which X is the subject, X is entitled to gain access to the data classified as public and private. The Strike Force should have provided a response to X about these data within ten business days. (See section 13.04, subdivision 3.) X first made a request for the data in a letter dated February 15, 2007. As of the date of X's opinion request, over six weeks later, apparently X had not received any response. The Strike Force did not comply with Chapter 13. </p><p> Regarding any data of which X is not the subject, X is entitled to gain access to the data classified as public. The Strike Force should have provided a response to X about these data in a prompt and appropriate manner, and within a reasonable time. (See section 13.03, subdivision 2, and Minnesota Rules 1205.0300.) Again, by not providing any response to X before April 11, 2007, the Strike Force did not comply with Chapter 13. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issues that X raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"> The Metro Gang Strike Task Force did not comply with Minnesota Statutes, Chapter 13, regarding a February 15, 2007, request for data (all data listed under #1 of the data request). </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: May 16, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2677042668272666402022-01-19T19:21:16Z266258266367266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267802" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-03-27T15:14:43ZDid 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?"March 27, 2007; Minnesota State Colleges and Universities36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 5, 2007, IPAD received a letter dated January 31, 2007, from Richard Kaspari, attorney for the Inter Faculty Organization (IFO). In his letter, Mr. Kaspari asked the Commissioner to issue an advisory opinion regarding the IFO's right to gain access to certain data from Minnesota State University Moorhead (MSUM), which is a part of the Minnesota State Colleges and Universities System (MnSCU).</p> <p>IPAD, on behalf of the Commissioner, wrote to James McCormick, Chancellor of MnSCU, in response to Mr. Kaspari's request. The purposes of this letter, dated February 14, 2007, were to inform him of Mr. Kaspari's request and to ask him to provide information or support for MnSCU's position. On March 7, 2007, IPAD received a response, dated same, from Gail Olson, General Counsel for MnSCU.</p> <p>A summary of the facts as provided by Mr. Kaspari is as follows. In an email dated January 18, 2007, an IFO member asked for copies of certain data referenced in a 2006 MSUM document entitled <em>Pandemic Response Plan</em>. The IFO member wrote, I am hereby requesting copies of any contingency plans the University may have for strikes by any group of employees at [MSUM].</p> <p>In an email dated January 22, 2007, MSUM's Director of Human Resources responded: Please be advised that this information is protected under Chapter 13.37 of [Minnesota Statutes, Chapter 13] and hence, it is not public data that must be disclosed.</p> <p>Upon request for clarification, the Human Resources Director sent an additional email on January 22, 2007: The labor relations clause is the first to come to mind, i.e., labor relations positions that are not presented to the union at the bargaining table are non-public under 13.37. But in my opinion there may be others that apply such as the security clause.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Kaspari's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">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?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>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).</p> <p>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.</p> <p>In addition, section 13.37, subdivision 2, classifies security information as private (data on individuals) and nonpublic (data not on individuals).</p> <p>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. . . .</p> <p>In his opinion request, regarding labor relations data, Mr. Kaspari wrote:</p> <p class="opinion_quote">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.</p> <p>In her comments to the Commissioner, Ms. Olson disagreed with Mr. Kaspari's interpretation:</p> <p class="opinion_quote">. . . [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 <em>any</em> 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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>MSUM also cited the security information section as a basis upon which to deny access to the strike plan. Ms. Olson wrote:</p> <p class="opinion_quote">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.</p> <p class="opinion_quote">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.</p> <p>The Commissioner has addressed the issue of security information in previous advisory opinions, such as <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267835" title="02-014" target="_blank">02-014</a>:</p> <p class="opinion_quote">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.</p> <p class="opinion_quote">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.</p> <p>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.</p> <p>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.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Kaspari raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">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. <p>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.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 27, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678022665022663702668872664682022-01-19T19:21:16Z266258266262266262266263266263266265266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267652" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-03-09T16:14:43ZDid Independent School District 720, Shakopee, comply with Minnesota Statutes, Chapter 13, if it collected private data about a student from the student without providing the Tennessen warning notice required by section 13.04, subdivision 2? If Independent School District 720, Shakopee, did not provide a Tennessen warning notice when it collected private data about the student from the student, did it comply with Minnesota Statutes, Chapter 13, when it used data it collected from the student?March 9, 2007; School District 720 (Shakopee)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On January 18, 2007, IPAD received a letter dated January 17, 2007, from Daniel Becker, an attorney representing a student enrolled in Independent School District 720, Shakopee. In his letter, Mr. Becker asked the Commissioner to issue an advisory opinion regarding his client's rights as a data subject under Minnesota Statutes, Chapter 13.</p> <p>IPAD, on behalf of the Commissioner, wrote to John McBroom, Superintendent of the District, in response to X's request. The purposes of this letter, dated January 24, 2007, were to inform him of X's request and to ask him to provide information or support for the District's position. On February 5, 2007, IPAD received a response, dated same, from Gregory Madsen, an attorney representing the District.</p> <p>A summary of the facts as Mr. Becker provided them is as follows. He wrote in his opinion request:</p> <p class="opinion_quote">[X] is a student [On a day in 2006, X] was interviewed by [school administrative staff]. During the interview of [X], [X] repeatedly was asked to supply private data concerning other students. The questions related to [out of school activities]. [X] declined to do so.</p> <p class="opinion_quote">[School administrative staff] then proceeded to request that [X] provide private data about [him/herself]. At this point, [X] definitely should have received a Tennessen warning in accordance with Minnesota Statutes, Section 13.04, Subdivision 2. [X] never received one at any time, however. [X] also was not provided a valid warning at any subsequent interviews, such as one that occurred later that same day with [X's parent] present. For example, [X] was not told in either interview that [X] could refuse to supply the requested information. [X] also was not told about any consequences that might arise from either supplying or refusing to provide the data. [X] certainly was not advised that the information [X] provided might be used by the School against [X] in disciplinary proceedings, or that it would be shared with other school officials, or that it could be disclosed to the Minnesota State High School League.</p> <p class="opinion_quote">In response to repeated questioning by school officials [on that same day], [X] disclosed private data about [him/herself] to the School. This constituted the collection of private data by the School District in violation of [Chapter 13].On the basis of this private data, [school officials] made a determination that [X] had violated a bylaw of the Minnesota State High School League and made a determination that [X] was ineligible.This action constituted a further violation of [Chapter 13] because of the School District's use of the private data .Finally, the school District continues to maintain the illegally obtained data in its files.</p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Becker's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did Independent School District 720, Shakopee, comply with Minnesota Statutes, Chapter 13, if it collected private data about a student from the student without providing the Tennessen warning notice required by section 13.04, subdivision 2?</li> <li>If Independent School District 720, Shakopee, did not provide a Tennessen warning notice when it collected private data about the student from the student, did it comply with Minnesota Statutes, Chapter 13, when it used data it collected from the student?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <h2>Issue 1</h2> <p><em>Did Independent School District 720, Shakopee, comply with Minnesota Statutes, Chapter 13, if it collected private data about a student from the student without providing the Tennessen warning notice required by section 13.04, subdivision 2?</em></p> <p>Pursuant to Minnesota Statutes, section 13.04, subdivision 2, when a government entity collects private or confidential data from an individual about that individual, the entity is required to provide a notice, commonly referred to as the Tennessen warning. The notice must contain the following four elements: (1) the purpose and intended use of the data; in other words, why the entity is collecting the data and how it will use the data; (2) whether the individual can refuse or is legally required to provide the requested data; (3) what the consequences are of supplying or not supplying the data; and (4) what agencies or persons outside the collecting entity legally will be able to get the data.</p> <p>In his comments to the Commissioner, Mr. Madsen related that the District had several conversations with X and/or X's parent(s) on the day Mr. Becker referenced in his opinion request. Mr. Madsen described the first two meetings as interviews and the third as a meeting. Apparently, the final conversation that day about the matter took place over the telephone, in the evening. The Commissioner has not seen a transcript of the meetings. However, based on the description Mr. Madsen gives of the first two meetings and some of the questions he says District staff asked of X and some of the answers he says X gave, it seems clear the District was asking X to provide private data about him/herself.</p> <p>(Minnesota Statutes, section 13.32, classifies data on individuals that are about students. Generally, pursuant to section 13.32 and federal law, data about students are private.)</p> <p>Regarding whether the District provided X with a Tennessen warning notice, Mr. Madsen wrote that during the first interview, X was not told that X could refuse to answer certain questions. Mr. Madsen did not provide information explaining when, or if, the District verbally provided the other elements of the notice or that the notice had been given to X in writing. Mr. Madsen further wrote, Even if the [Commissioner] were to determine that [X] received an incomplete Tennessen warning notice it is clear that, in the context of this matter, any such deficiency in the notice was at most a <em>de minimus</em> violation.</p> <p>The Commissioner disagrees. Because the District seemingly collected private data about X from X, during at least the first two meetings, the District should have provided X with a Tennessen warning notice. Because the District apparently provided no notice, it did not comply with Chapter 13.</p> <h2>Issue 2</h2> <p><em>If Independent School District 720, Shakopee, did not provide a Tennessen warning notice when it collected private data about the student from the student, did it comply with Minnesota Statutes, Chapter 13, when it used data it collected from the student?</em></p> <p>Section 13.05, subdivision 4, states that private or confidential data shall not be collected, stored, used, or disseminated by a government entity for any purposes other than those stated to the individual at the time of collection in accordance with section 13.04.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267488" title="95-028" target="_blank">Advisory Opinion 95-028</a>, the Commissioner wrote:</p> <p class="opinion_quote">The Legislature, by connecting the notice requirement of Section 13.04, subdivision 2, with the limitations on uses and disseminations of data established by Section 13.05, subdivision 4, also provided a consequence for government entities which do not meet their statutory obligation regarding the collection of private or confidential data. If a government entity does not administer a Tennessen Warning that meets the requirements of Section 13.04, subdivision 2, there are strict limitations imposed on the entity regarding any data it collects without giving the notice required by statute. That is, those data may not be stored, used or disseminated except as provided in Section 13.05, subdivision 4, as cited above.</p> <p>Mr. Madsen asserts that after the first day in which District officials interviewed X, all subsequent admissions by [X], [X's] parents and their lawyer were voluntary and no Tennessen warning notices were required. He added:</p> <p class="opinion_quote">Consequently, it was proper for the School District to rely on the multiple admissions . . . and to fulfill its obligations as a MSHSL [Minnesota State High School League] - member school to impose the MSHSL-mandated penalty. Equally significant, pursuant to the release signed by [X] and [X's] parent, they consented to the School District's documentation and use of such admissions in connection with the eligibility determination.</p> <p>The Commissioner has examined the document Mr. Madsen provided entitled <em>2006-2007 MSHSL Athletic Eligibility Statement</em>. It appears to have been created by the MSHSL and was signed by X and X's parent(s). It discusses the Student Code of Responsibilities. Of relevance here, the document contains the following statement, The student/parent authorizes the release of documents and other pertinent information by the school in order to determine student eligibility.</p> <p>As the Commissioner previously has opined, an individual cannot consent to have certain data released if s/he does not know what data will be released. When X and his/her parent signed the consent document, the data at issue in this opinion had not yet been collected from X. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267691" title="04-009" target="_blank">Advisory Opinion 04-009</a>, the Commissioner wrote, In the present case, X was asked to sign the informed consent before GFA collected data about him/her. Therefore, the Commissioner opines that GFA violated X's rights by having him/her give informed consent before X knew what data GFA would be collecting from X.</p> <p>Thus, because the consent signed by X does not seem valid, and the District apparently did not provide a Tennsessen warning notice when it collected certain private data from X about X, pursuant to section 13.04, subdivision 4, the District did not comply with Chapter 13 when it used those data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Becker raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Independent School District 720, Shakopee, did not comply with Minnesota Statutes, Chapter 13, when it collected private data about a student from the student without providing the Tennessen warning notice required by section 13.04, subdivision 2.</li> <li>Because Independent School District 720, Shakopee, did not provide a Tennessen warning notice when it collected private data about the student from the student, it did not comply with Minnesota Statutes, Chapter 13, when it used data it collected from the student.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 9, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676522662692664932022-01-19T19:21:16Z266258266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267754" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-02-14T16:14:43ZDid the Middle Snake Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in charging $124.85 for copies of government data?February 14, 2007; Middle Snake Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 5, 2007, IPAD received a letter dated January 3, 2007, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding copy charges assessed by the Middle Snake Tamarac Rivers Watershed District.</p> <p>IPAD, on behalf of the Commissioner, wrote to Nick Drees, Administrator for the District, in response to Mr. Stengrim's request. The purposes of this letter, dated January 17, 2007, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for the District's position. On January 30, 2007, IPAD received a response, dated same, from Jeffrey Hane, an attorney representing the District.</p> <p>A summary of the facts as Mr. Stengrim provided them is as follows. In a letter dated August 22, 2007, Mr. Stengrim asked to inspect the following data:</p> <p class="opinion_quote">1. All expense statements for ditch JD 25-I from January 1990 to September 2006. <br /> 2. All board minutes from January 1990 to September 2006 that ditch JD 25-I was discussed. <br /> 3. All request for repair or installation of any and all types of crossings on ditch JD 25-I the Watershed District received from January 1990 to September 2006.</p> <p>In a letter dated October 31, 2006, Mr. Stengrim asked for copies of the data.</p> <p>In a letter dated November 6, 2006, the District responded, attaching an invoice that indicated the total copy cost would be $138.15. The breakdown was as follows: 133 copies at $.10 a page ($13.30) plus 5 hours to retrieve and copy documents at $24.97 an hour ($124.85).</p> <p>In a letter dated November 7, 2007, Mr. Stengrim asked how many pages contained the data he requested in Item 1 and how many pages contained the data he requested in Item 2.</p> <p>In a letter dated December 8, 2007, the District responded, The number of pages for item #1 of your request is 107 pages. The number of pages for item #2 of your request is 26 pages.</p> <p>In a letter dated December 12, 2006, Mr. Stengrim wrote, After reviewing your response I have decided that at this time I only want copies of the 26 pages concerning the item #2 of my request. These copies will be the minutes of Board meeting from 1999 to September 2006 that JD25-I was discussed.</p> <p>In a letter dated December 14, 2006, the District responded, This reduces your billing $10.70. The amount now is $127.45. The breakdown contained in the attached invoice was as follows: 26 pages at $.10 ($2.60) plus 5 hours to retrieve and copy documents at $24.97 an hour ($124.85).</p> <p>In a letter dated December 26, 2006, Mr. Stengrim wrote, It appears that your required payment is in violation of [Chapter 13].</p> <p>In a letter dated December 29, 2006, the District wrote and indicated the fee remained $127.45.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Stengrim's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Middle Snake Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in charging $124.85 for copies of government data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Minnesota Statutes, section 13.03, subdivision 3, provides for situations in which an individual who is not the data subject requests access to government data. If the individual wants to inspect the data, the entity may not charge any fee (section 13.03, subdivision 3(a).)</p> <p>If the individual wants to get copies of the data, the entity may choose to charge a fee. Section 13.03, subdivision 3(c), provides that if the number of requested paper copies is 100 or fewer, the entity may charge no more than $.25 per page. If the number of pages is more than 100, the entity's fee must be based on the actual costs of searching for and retrieving the data, and for making, certifying, compiling, and electronically transmitting the copies. The language establishing a different fee structure based on number of pages copied was enacted during the 2005 Legislative Session.</p> <p>Here, when Mr. Stengrim made his data request, he asked to inspect the data. Two months later, he wrote to the District and asked that they send him copies instead. Because the total number of pages was over 100, the District charged him $.10 per page and $124.85 to retrieve and copy the documents. The District asked Mr. Stengrim to pay prior to the District sending him the copies. Mr. Stengrim then asked that the District send him only some of the data, the total of which was under 100 pages.</p> <p>Nothing in Chapter 13 prohibits an individual from making a request to inspect data then deciding to ask for copies. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267597" title="04-038" target="_blank">Advisory Opinion 04-038</a>, the Commissioner addressed a similar issue:</p> <p class="opinion_quote">. . . Mr. Browning has engaged in what, technically, is a two-step process. First he asked to inspect certain data. . . . Second, upon examining the documents, he determined that he wanted copies of only 198 pages of data. Given the 'actual cost' language in section 13.03, subdivision 3(c), it does not seem appropriate for Mn/DOT to charge Mr. Browning the cost it incurred searching for and retrieving data in all the documents he initially asked to inspect . . . Therefore, the Commissioner recommends that Mn/DOT prorate the search and retrieval portion of the copying charge. In other words, if it took Mn/DOT one hour at $34.85/hour to retrieve the data in all the pages Mr. Browning asked to inspect, Mn/DOT may charge the percentage of the $34.85 that the 198 pages represent.</p> <p>Here, Mr. Stengrim revised his request for copies downward, asking for copies only of some of the data he originally requested. Nothing in Chapter 13 prevents him from doing this and the statute clearly states that if the number of paper copies is 100 or fewer, the District may charge him no more that $.25 cents per page. The Commissioner notes that this charge is a flat rate and is not to include any additional costs such as mailing, cost of paper, cost of toner, or searching for the data.</p> <p>The following note is in order. The Commissioner is aware that in 2005 when the Legislature amended section 13.03, subdivision 3(c), there was discussion in committee about situations in which an individual interested in obtaining hundreds of paper copies might space the requests so the total number of pages is always under 100. Legislators made it clear that such a scenario would circumvent the intent behind allowing entities to charge a search for and retrieval fee if an individual requests a large amount of data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Stengrim raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Middle Snake Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in charging $124.85 for copies of government data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 14, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677542669362668032022-01-19T19:21:15Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268008" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-02-06T16:14:43ZHas the Red River Watershed Management Board complied with Minnesota Statutes, Chapter 13, with regard to an October 13, 2006, request for certain data? February 6, 2007; Red River Watershed Management Board36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On December 18, 2006, IPAD received a letter dated December 14, 2006, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Red River Watershed Management Board. </p><p> IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, the Board's data practices compliance official, in response to Mr. Stengrim's request. The purposes of this letter, dated December 22, 2006, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the Board's position. On January 5, 2007, IPAD received a response, dated same, from Ms. Erickson. </p><p> A summary of the facts as Mr. Stengrim provided them is as follows. In a letter dated October 13, 2006, Mr. Stengrim wrote to the Board: </p><p class="opinion_quote"> The following public data is now requested. <br /> 1. The adopted loan guidelines of the [Board]. <br /> 2. All loan requests received from member watershed districts prior to January 1, 2006. <br /> 3. All Minnesota Statutes that govern the [Board] powers to make loans. <br /> 4. The section of the [Board] governing bylaws that allows loans to be made. </p><p> In his opinion request, Mr. Stengrim wrote, There has been no attempt by the [Board] to respond to the request. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Stengrim's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Has the Red River Watershed Management Board complied with Minnesota Statutes, Chapter 13, with regard to an October 13, 2006, request for certain data? <br /></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. </p><p> As part of her comments to the Commissioner, Ms. Erickson attached the District's January 5, 2007, response to Mr. Stengrim's October request. In her letter to Mr. Stengrim she wrote: </p><p class="opinion_quote"> . . . Enclosed is a copy of the adopted loan guidelines of the [Board]. We have reviewed [Board] history concerning loan requests prior to January 1, 2006, and have determined that there have been no loan requests from member watershed districts per se; there have been several cases in which member watershed districts have received an advance payment of committed project funding. </p><p class="opinion_quote"> Our attorney, as well as the attorney for the Middle-Snake-Tamarac Rivers Watershed District, has advised that the loan provided for the Agassiz Valley Water Management project to that watershed district was authorized under Minnesota Statutes and other applicable law. Our attorney has also advised that the appropriate response to Items 3 and 4 of your data request is to refer you to Minnesota Statutes Chapter 103D and the [Board's] bylaws, which have been previously provided to you. There are no other documents or data in our possession on this subject. I am not authorized to provide you legal opinions in response to your requests for data under [Chapter 13]. </p><p> As discussed above, government entities must respond to data requests promptly and appropriately. Regarding Mr. Stengrim's part of the October 13 request for the loan guidelines, in her comments to the Commissioner, Ms. Erickson wrote, The amendment to the funding procedures identified in our response was the subject of deliberation at the November and December 2006 meetings of the [Board]; delay in action on this amendment lead to delay in our response to Mr. Stengrim. Mr. Stegrim made his request in a letter dated October 13, 2006. Given that the Board apparently did not communicate with Mr. Stengrim on this matter until January 5, 2007, the Board's response was not timely. The Commissioner is unable to determine if the Board provided all data response to this part of Mr. Stengrim's request. </p><p> Regarding Mr. Stengrim's part of the October 13 request for prior loan requests, Ms. Erickson did not provide any information explaining why it took the Board approximately 12 weeks to inform Mr. Stengrim that no data existed regarding his request. This is not a timely response. </p><p> Regarding the third and fourth items Mr. Stengrim requested on October 13, it appears they technically are not requests for data, but rather are questions. As such, they are not subject to the requirements of Chapter 13 and the District can choose to respond or not. (It appears the Board did refer Mr. Stengrim to Chapter 103D and the Board's bylaws - although it is not clear if he was provided copies of both.) If Mr. Stengrim had asked for copies of all data that document the Board's powers to make loans, the Board then would have been required to respond as required by Chapter 13, and provide any data it maintains that are responsive to the request. The Commissioner notes it is possible that some of the responsive data might include attorney client information that is protected by section 13.393. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issues that Mr. Stengrim raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Red River Watershed Management Board did not comply with Minnesota Statutes, Chapter 13, regarding the first two items requested on October 13, 2006. It appears the third and fourth items requested are questions not subject to the requirements of Chapter 13. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: February 6, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2680082022-01-19T19:21:15Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267740" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-30T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings? Pursuant to Minnesota Statutes, Chapter 13, what is the classification of notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board?January 30 2007; Middle Snake Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On November 20, 2006, IPAD received letters, dated November 16, 2006, from Jeffrey Hane, an attorney representing the Middle Snake Tamarac Rivers Watershed District. Mr. Hane asked the Commissioner to issue an advisory opinion regarding the classification of certain data. IPAD sought clarification, which Mr. Hane provided in a letter dated December 8, 2006. The Commissioner sought and received comments from Tracy Anderson, Elden Elseth, and Loren Zutz.</p> <p>A summary of the facts as Mr. Hane provided them is as follows.</p> <p>In a document dated October 13, 2006, Mr. Anderson requested:</p> <p class="opinion_quote">. . . that existing audio recordings of District meetings or made in the course of conducting District business made by managers Mr. Loren Zutz and Mr. Elden Elseth be made available for public inspection at a convenient [sic] time.</p> <p>In his opinion request, Mr. Hane wrote:</p> <p class="opinion_quote">It is my understanding, based in part by my presence at Board of Manager monthly meetings where Managers Elseth and Zutz were present, that the Managers used electronic devices to record the proceedings, recording them in whole or at least in part. I am not aware of either Manager using their recording device during the meeting for the purpose of taking private notes. When asked by the Watershed Administrator to assist him in responding to Mr. Anderson's request, it was my opinion that these recordings are more likely than not public data, since they were created by members of a public body and are a verbatim recording of the proceedings of a public body, and the Managers created them while exercising their official duties.</p> <p>In a letter dated November 13, 2006, Wally Dietrich asked to inspect:</p> <p class="opinion_quote">1. All notes taken by Tracy Anderson while serving on the [District] as a Board Manager. This request includes regular, special, advisory and committee meetings. <br /> 2. All notes taken by Tracy Anderson while serving on the [District] as a Board Manager at closed meetings concerning litigation where the issue has now been settled.</p> <p>In his opinion request, Mr. Hane wrote:</p> <p class="opinion_quote">I am aware of a previous opinion where the commissioner believed that notes taken by a school board member for the purpose of creating official minutes were public data. Personal notes taken by individual board members for their own use or benefit, it would seem, would not be government data created by the agency itself. If such notes were government data created by the agency, then presumably all notes created by any member of any body of a political subdivision would be subject to a data practice request and subject to the data retention rules. . . .</p> <p class="opinion_quote">Especially troublesome to me is Mr. Dietrich's request to inspect notes taken during closed meeting [sic] where the attorney-client privilege was in place and attorneys for the [District] were explaining legal theories, discussing litigation strategy, or otherwise counseling our client. . . .</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Hane's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings?</em></p> <p>Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.</p> <p>The term government entity is defined at section 13.02, subdivision 7a, as a state agency, statewide system, or political subdivision. Thus, any data an entity or its governing board creates, maintains, etc., are government data. One exception to this general rule is if an employee or governing board member creates, maintains, etc., data that are <em>personal</em>. That is, data an employee or official did not create in his/her government capacity and data the purpose of which are not related to the operations of government. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">01-075</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267650" title="02-049" target="_blank">02-049</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267417" title="05-017" target="_blank">05-017</a>.)</p> <p>Whether government data are public or not public depends upon how the data are classified in Chapter 13, other Minnesota laws, or federal law.</p> <p>The District is a political subdivision. Thus, any audio recordings of meetings of the District's governing board made by members of its governing board, including Mr. Elseth and Mr. Zutz, are government data, and the responsibility of the District. Because it does not seem possible that audio recordings of board meetings could contain <em>personal</em> data, the Commissioner assumes all the data contained in the audio recordings are government data.</p> <p>In their comments to the Commissioner, Mr. Elseth and Mr. Zutz discussed that they recorded the meetings on digital recording devices. They wrote, After recording on the device it must either be downloaded onto a computer using a licensed computer program or erased. This does not change the fact that the recordings are government data.</p> <p>As to the classification of the audio recordings, the Commissioner was not made aware that any of the recordings occurred during a closed meeting or that any provision in Chapter 13 or another statute classifies the data as anything other than public. Therefore, they are public pursuant to section 13.03, subdivision 1.</p> <p>Government data consist of both official and non-official records. Official records are defined in Minnesota Statutes, section 15.17 those records . . . necessary to a full and accurate knowledge of [one's] official activities.</p> <p>Government entities are required to keep official records at least as long as their retention schedules require. (See Minnesota Statutes, section 138.17.)</p> <p>In their comments to the Commissioner, Mr. Elseth and Mr. Zutz wrote, [Mr. Zutz] is unable to locate the recording and believes it was erased and that the recording does not exist.</p> <p>They also wrote:</p> <p class="opinion_quote">With regard to [Mr. Elseth], a third party and not a member of the Board of managers . . . had asked Mr. Elseth to record meetings for him . . . The recordings were made on a device owned by [the third party]. . . . The recordings were later downloaded to [the third party's] personal computer and the recordings on the device owned by [the third party] were erased.</p> <p>The Commissioner's opinion is that the audio recordings Mr. Elseth and Mr. Zutz made of the board meetings are not official records and, therefore, are not subject to retention requirements. Based on the comments from Mr. Elseth and Mr. Zutz, it appears the data no longer exist. Although the District is not required to maintain the data for any specific period of time, if the audio recordings existed at the time Mr. Anderson made his request, and the District was in possession of them, the District was required to provide access to them.</p> <p>A final note is in order. Mr. Elseth discussed that he made audio recordings for a third individual. Whether it is appropriate for governing board members to make audio recordings for members of the public and whether those recordings then take on a <em>personal</em> data status depends upon many factors, such as whether there is a board policy permitting such recordings and whether governing board members are transparent about for whom they are making recordings. Here, as stated above, based on the facts presented to the Commissioner, her opinion is that the audio recordings are government data.</p> <h2>Issue 2:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board?</em></p> <p>As discussed above in the analysis of the Issue 1, the District is a political subdivision. Any notes Mr. Anderson took at board meetings when he was a governing board member are government data unless the data are unrelated to his fulfilling his board member responsibilities and are <em>personal</em>. Thus, the first part of the District's analysis into whether the notes may be released is to determine whether they contain any personal data; if so, such data are not government data and not subject to Chapter 13.</p> <p>As to the classification of any government data in the notes, the Commissioner offers the following guidance. All government data are public unless otherwise classified. If any of the data in the notes are classified in Chapter 13 or other statute as anything other than public, the District cannot release them. This would include any data classified by section 13.393 as attorney data. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267779" title="96-038" target="_blank">96-038</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267759" title="97-009" target="_blank">97-009,</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267516" title="05-009" target="_blank">05-009</a>.)</p> <p>The Commissioner's opinion is that the notes Mr. Anderson took at board meetings when he was a board member are not official records and, therefore, are not subject to retention requirements. Although the District is not required to maintain the data for any specific period of time, if any of the notes existed at the time Mr. Dietrich made his request, and the District was in possession of them, the District was required to provide access to them.</p> <p>A final note is in order. If the District does not have a records retention schedule listing official records and how long they need to by maintained, it should create one promptly.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Hane raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Data contained in audio tape recordings that two Middle Snake Tamarac Rivers Watershed District board managers made of board meetings are public pursuant to section 13.03, subdivision 1.</li> <li>Notes taken by a former Middle Snake Tamarac Rivers Watershed District board manager during board meetings while he was a member of the board are public pursuant to Minnesota Statutes, section 13.03, subdivision 1.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 30, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677402666482666412022-01-19T19:21:15Z266258266511266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267391" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-26T16:14:43ZIs the Minnesota Department of Labor and Industry in compliance with Minnesota Statutes, Chapters 13, 175 and 176, if it releases certain data in its WC-Informix database in response to a request for summary data?January 26 2007; Minnesota Department of Labor and Industry36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 12, 2006, IPAD received a letter from Nancy J. Leppink, Director of Legal Services for the Minnesota Department of Labor Industry. In her letter, Ms. Leppink asked the Commissioner to issue an advisory opinion regarding the public's right to gain access to certain data from the Department.</p> <p>In a letter dated December 18, 2006, IPAD invited Avner Ben-Ner to provide comments, which he did, in a letter dated December 26, 2006. Mr. Ben-Ner had requested an opinion from the Commissioner in October 2006; subsequently he withdrew his request and agreed to let the Department request this opinion.</p> <p>A summary of the facts as Ms. Leppink presented them follows. Ms. Leppink wrote:</p> <p class="opinion_quote">On September 26, 2006 the DLI received a request from University of Minnesota Professor Ben-Ner for certain data DLI maintains in a database identified by DLI as the WC-Informix database. The data requested by Professor Ben-Ner included workers' compensation data about injured employees, their employers, and their employer's insurers.</p> <p class="opinion_quote">The following is a description of DLI's WC-Informix database:</p> <p class="opinion_quote">Numerous paper documents and some electronic documents are received daily by DLI's Information Processing Center (IPC), opened and sent for scanning. Various provisions in Minn. Stat. Ch. 176 require that these documents be filed with and maintained by the DLI. The scanning operator makes sure the scanner correctly identifies a document using a Form ID that is affixed to the document and forwards documents with specific Form IDs to Data Entry. Data Entry operators capture or code specific fields of data from each of the documents forwarded to them. Once the data from the documents is entered, the paper document is shredded and the electronic data flows into a series of tables in the WC-Informix database. The scanned document is also maintained by the department.</p> <p class="opinion_quote">In addition a limited amount of data in the WC-Informix database is received by other means. Some information is forwarded as an electronic database from other state agencies (e.g., Commerce sends some insurer information, DEED sends an employer table). Some information is data-entered elsewhere in DLI (e.g., alternative dispute resolution documents, insurer penalties, QRC documents).</p> <p class="opinion_quote">The Informix program provides an inventory of all tables in the DLI-Informix database. There are approximately 40 tables in the database.</p> <p class="opinion_quote">Most of the data in the WC-Informix database is data entered from reports filed with the department as required by Minn. Stat. section 176.231. [Reports are required where death or serious injury occurs to an employee during the course of employment. ] The reports filed in accordance with Minn. Stat. section 176.231 are specific to particular employee workers' compensation claims.</p> <p class="opinion_quote">The WC-Informix data requested by Professor Ben-Ner is data that is submitted to DLI in one or more reports employers, insurers and health care providers are required to file with DLI in accordance with Minn. Stat. section 176.231. DLI has identified the following statutory provisions that provide direction on how the data requested by Professor Ben-Ner is classified and whether DLI may release the data to him.</p> <p>Ms. Leppink discussed the applicability of various statutes that relate to workers' compensation: sections 175.10, 175.171, 175.24, 175.27, 176.138, 176.231 and 176.234.</p> <p>In his request for access to data, Mr. Ben-Ner asked the Department for various data elements it maintains in the database, matched against 850 companies. The data elements include, for example, employee's age, zip code, date of injury and employment status; and employer's name, address, zip code, insurance type, and unemployment insurance number.</p> <p>In response to that request, the Department responded that it would not grant him access, based on section 176.231, subdivisions 8 and 9. The Department acknowledged that it had provided Mr. Ben-Ner with access to similar data in the past, but that in light of a 2004 Minnesota Supreme Court decision (<em>Westrom v. Minnesota Dept. of Labor and Industry</em>, 686 N.W.2d 27 (Minn. 2004)) it has reconsidered its practice in the release of all data more strictly even though [Westrom] was specifically only about whether a company's alleged violations of worker's compensation laws are public data.</p> <p>In her opinion request, Ms. Leppink wrote:</p> <p class="opinion_quote">In his letter to the Department of Administration, Professor Ben-Ner cites to the summary data provision of the Minnesota Data Practices Act (MDPA), Minn. Stat. section 13.05, subd. 7 (2004), to support his position that DLI may release to him the data he has requested.</p> <p class="opinion_quote">After careful review of the summary data provision on [sic] the MDPA, the department reached the following conclusions and identified the following difficulties in applying this provision to Professor Ben-Ner's request. To begin, Minn. Stat. section 13.05, subd. 7 provides that [t]he use of summary data derived from private or confidential data on individuals under the jurisdiction of one more responsible authorities is permitted. Unless classified pursuant to section 13.06, another statute, or federal law summary data is public. Minn. Stat. section 13.02, subd. 19 defines summary data as statistical records and reports derived from data on individuals but in which the individuals are not identified and from which neither their identities nor any other characteristic that could uniquely identify an individual is ascertainable. And Minn. Stat. section 13.02, subd. 8 defines individual as a natural person.</p> <p class="opinion_quote">Based on its review of the above language, the department concluded the summary data provision of Minn. Stat. section 13.05, subd. 7 (2004), applies only to data on individuals. Consequently subdivision 7 does not permit the use or release of summary data derived from protected nonpublic data and nonpublic data. The data requested by Professor Ben-Ner includes data on individuals and data not on individuals. Further, arguably the same data could be on both. The data in the WC-Informix is primarily provided by employers, insurers and medical providers. Professor Ben-Ner is researching employers' management practices and workplace safety. To conduct this research he has requested data from the department about employers' experience with workers' compensation claims. So arguably he is requesting data about employers and not individuals. But clearly the data he is requesting is also employees' workers' compensation data and also to a lesser degree insurers' workers' compensation data. To the extent Professor Ben-Ner's request is seeking data that is not on individuals the summary data provision does not apply and the data cannot be release [sic] to him under that provision. Consequently, the department is seeking assistance on how to determine what data in its database is on individuals and what data is data not on individuals. Or does it depend on the request?</p> <p class="opinion_quote">To the extent Professor Ben-Ner is seeking summary data on individuals, the department has the following concerns. The data requested is specific data about specific individuals, such as the individual's date of injury, nature of injury, employer, marital status, extent of disability. Therefore, is the data he has requested a statistical record or report derived from data on an individual when it is the actual data on the individual that is being requested? Further, Professor Ben-Ner is requesting an extensive amount of specific data about specific individuals. The department is seeking assistance on how to determine what data or set of data will result in the employee's identity or any other characteristic that could uniquely identify the employee being ascertainable? Some employees' injuries are more unique than others. Consequently a small subset of data could uniquely identify the employee. Arguably providing an employee's date of injury, that the injury resulted in the employee's death and the employer name could uniquely identify the employee of a highly publicized workplace fatality. Particularly when matched with other readily available data from other sources outside the department. Thus providing any subset of data about a specific individual, even if individual's name, address, telephone number, social security number is not provided, could be found to be insufficiently summary . Again the department is seeking assistance in how to navigate this provision of the act in light of the significant amount of data Professor Ben-Ner is requesting.</p> <p>In his comments to the Commissioner, Mr. Ben-Ner wrote:</p> <p class="opinion_quote">The principal concern of [Ms. Leppink's December 12, 2006, letter requesting this opinion] appears to be that my request includes individual employee workers' compensation data, which apparently does not qualify as summary data per Minnesota Statute 176.231 subdivision 9, and Minnesota Statute 13.05 subdivision 7.</p> <p class="opinion_quote">As Ms. Leppink's letter notes, my original data request includes individual workers' date of injury, nature of injury, age at the injury, etc. which could be regarded as insufficiently summary. As the letter further notes, my research project concerns the relationship between managerial practices and firm-level workers' compensation claims outcomes. Indeed, individual employee-level information is not required for my research; all the variables I need from DLI's data base are at the firm level. The reason I requested individual employee information was to use it to generate firm-level summary variables. This is how we proceeded in the past; this was done in order to facilitate DLI's provision of the information.</p> <p class="opinion_quote">I will be happy to receive the information I requested aggregated to the firm level. If necessary, I (or someone from my research staff) could work with DLI staff to generate the requisite data.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Leppink's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the Minnesota Department of Labor and Industry in compliance with Minnesota Statutes, Chapters 13, 175 and 176, if it releases certain data in its WC-Informix database in response to a request for summary data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>As Ms. Leppink noted, pursuant to section 13.02, subdivision 19, summary data, a term defined in statute, are data that are derived from private or confidential data on individuals, but are data in which individuals are not and can not be identified. Minnesota Rules, part 1205.0200, and 1205.0700, provide additional guidance regarding summary data.</p> <p>The Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508" title="00-011" target="_blank">Advisory Opinion 00-011</a>:</p> <p class="opinion_quote">Summary data must be derived from what is otherwise completely private or confidential data. To create summary data, government entities are required to remove all personal identifiers from the private or confidential data. Other detailed private or confidential data do not need to be redacted, once the personal identifiers are removed. The principal reason for the summary data provision is to allow access to otherwise private or confidential data for research purposes.</p> <p>According to Ms. Leppink, the WC-Informix database contains both public and not public data on individuals, and both public and not public data that are not about individuals. She stated that Mr. Ben-Ner requested access to data on individuals as well as data not on individuals. The Commissioner agrees with the Department that it cannot prepare <u>summary</u> data that are responsive to Mr. Ben-Ner's request, because the data he requested do not derive solely from data on individuals. He asked for access to data about individuals linked to data about companies.</p> <p>However, upon analyzing whether the Department must provide Mr. Ben-Ner with data aggregated to the firm level, as he proposed in his comments, the Commissioner has identified several issues that raise questions about the Department's ability to provide access to any data in the WC-Informix database. The following discussion is intended to provide guidance to the Department.</p> <p>In her opinion request, Ms. Leppink wrote:</p> <p class="opinion_quote">Next it is the conclusion of the department that other statutes prohibit the department from releasing the requested data and consequently they trigger the language in Minn. Stat. 13.05, subd. 7 that provides [u]nless classified pursuant to . . . another statute, or federal law, summary data is public. There are several provisions in Chapters 175 and 176 that the department believes prohibit it from releasing the requested data in any form, including as summary data. In particular, Minn. Stat. section 176.231, subd. 8, provides that the reports and the content of reports filed with the Department under that section shall not be disclosed and expressly makes disclosure of the data a misdemeanor. The department has interpreted the term content to mean each and every data element contained in a report. Thus the provision precludes the department from providing data elements even if data that identifies or would tend to identify an individual is not provided. The department has also concluded that this provision precludes the department from entering into an agreement with Professor Ben-Ner as allowed by Minn. Stat. 13.05, subd. 7 (2004). As identified by Professor Ben-Ner, subdivision 9 sets out limited circumstance [sic] in which the department may use the data it is otherwise prohibited from releasing. Subdivision 9 allows the Department to use the data in hearings held under this chapter, and for the purpose of state investigations and for statistics. The statute does not allow the commissioner to release the data so that other persons may use it to create statistics. The statute also does not require the department to prepare statistical data at the request of the public. Moreover it is the conclusion of the department that the data Professor Ben-Ner is requesting is not statistics . It is the conclusion of the department that subdivision 8 and 9 must be interpreted to give effect to both.</p> <p class="opinion_quote">There are three additional provisions that apply to the release of the data requested. Minn. Stat. section 176.138 limits the release of injured employee medical data. The department has concluded that this section prohibits the department from releasing injured employee medical data maintained in the WC-Informix database to Professor Ben-Ner because he is not an employee, employer, insurer or the department and he does not have authorizations from injured employees to access their medical data. Minn. Stat. section 175.24 prohibits the department from disclosing the names of persons or concerns supplying information requested by the department and Minn. Stat. section 175.27 and makes such a disclosure a misdemeanor. Finally, Minn. Stat. section 176.171 provides that [a]ccess to and electronic data interchange of nonpublic data shall be only as authorized by the subject of the data, as authorized in chapter 13, or as otherwise authorized by law.</p> <p>Ms. Leppink stated that most of the data in the WC-Informix database derive from the reports mandated under section 176.231, but the database also contains a limited amount of data . . . received by other means. Some information is forwarded as an electronic database from other state agencies (e.g., Commerce sends some insurer information, DEED sends an employer table). Some information is data-entered elsewhere in DLI (e.g., alternative dispute resolution documents, insurer penalties, QRC documents). Ms. Leppink did not discuss the classification of all of the data in the database that are not from mandated reports, but she did state that there are some public data in WC-Informix, which the Department must provide upon request.</p> <p>Mr. Ben-Ner is seeking access to data from the mandated reports. It is the conclusion of the Commissioner that the key to analyzing whether the Department must provide any data to Mr. Ben-Ner depends upon the language in section 176.231, subdivisions 8 and 9.</p> <p>Subdivision 8 provides: [s]ubject to subdivision 9, a report or its copy which has been filed with the commissioner of the Department of Labor and Industry under this section is not available to public inspection. Any person who has access to such a report shall not disclose its contents to anyone in any manner.</p> <p>Subdivision 9 provides: [r]eports filed with the commissioner under this section may be used in hearings held under this chapter, and for the purpose of state investigations and for statistics. (Emphasis added.)</p> <p>Thus, while data in the mandated reports are not subject to public disclosure, the data may be used for statistics. According to Ms. Leppink, the Department takes the position that subdivision 9 allows the <u>Department</u> to use the data for statistics, but that it does not allow the commissioner to release the data so that other persons may use it to create statistics. Accordingly, the Department will not release to the public any data in the WC-Informix database that derive from the mandated reports.</p> <p>Strictly speaking, section 176.231, subdivisions 8 and 9, do not classify data in the reports as not public, rather, they regulate access to the data. As noted on page 2 above, Ms. Leppink has identified various statutory provisions that together generally indicate the Legislature's intention to protect the data from public disclosure. The Commissioner is aware of the competing policy considerations regarding data in the mandated reports of injuries to workers. By protecting the data, employees and employers are given incentives to provide full details of workplace accidents. However, there is also public interest in research to help improve worker safety that can be conducted only if public access to data in the mandated reports is allowed.</p> <p>Unfortunately, the language in section 176.231, subdivision 9, stating that data in the reports may be used for statistics, is vague, and the Commissioner cannot determine the meaning of the disputed language. The sentence construct reasonably could be interpreted to mean what the Department thinks it means, i.e., the data in the reports can be used for statistics only by the Department. It also reasonably could be interpreted to allow the Department to provide access to others, including Mr. Ben-Ner, to use the data for statistics. Under that interpretation, the Commissioner believes that the Department could enter into a non-disclosure agreement with a party to whom it provides access to the data to use for statistics. However, the Commissioner cannot resolve the issue. The Commissioner urges the Department, or other interested parties, to seek clarification from the Legislature about the scope and meaning of the language in subdivision 9, and also to revise the statutes to conform with the data classification scheme provided in Chapter 13. IPAD is available to assist in that effort.</p> <p>Further, Ms. Leppink also discussed the Department's response to the Minnesota Supreme Court's decision in <em>Westrom</em>:</p> <p class="opinion_quote">The department acknowledges that it has changed its position on the release of data it maintains in the WC-Informix database. The recent Supreme Court decision in Westrom, which found that the Department had erroneously classified certain data as public, triggered a careful reconsideration by the Department of how it classifies and under what circumstances it may release the various data it collects, creates, receives, maintains, and disseminates. That reconsideration has resulted in the current change in position regarding the data requested by Professor Ben-Ner.</p> <p class="opinion_quote">Although the MDPA has long provided that government data is presumed to be public unless expressly made not public, the recent addition of the significant penalties and the right to damages for an agency's erroneous release of data ultimately found to be not public has in effect reversed that presumption. This is particularly true when the data is of the sensitive nature sought by Professor Ben-Ner.</p> <p>It is understandable that <em>Westrom</em> prompted the Department to evaluate its responses to data requests, which can explain the Department's shift in position regarding access to the data in question. However, it is the Commissioner's opinion that the <em>Westrom</em> case, about civil investigative data, is not generally applicable to requests for access to data the Department maintains. The Department's response to <em>Westrom</em> underscores the need for the Legislature to reconcile the conflicting policy considerations.</p> <p>To summarize, Mr. Ben-Ner did not ask the Department to create summary data, because he did not ask for data solely derived from private or confidential data on individuals. Instead, he asked for access to data linking data on individuals to data not on individuals. In addition, given the vague statutory language in section 176.231, the Commissioner cannot determine if the Department must otherwise provide access to data in the WC-Informix database, and urges the Department to seek clarification from the Legislature.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Ms. Leppink raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.02, subdivision 19, the Minnesota Department of Labor and Industry cannot prepare summary data derived from data in its WC-Informix database because the data in question are not solely private or confidential data on individuals. The Department should seek Legislative clarification of the scope and meaning of the restrictions placed upon access to the data in section 176.231.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 26, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673912665442665142022-01-19T19:21:15Z266258eng266264266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267479" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-22T16:14:43ZDid the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails? Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of persons who corresponded with Council Members Glidden and Remington?January 22 2007; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On December 6, 2006, IPAD received a letter dated December 5, 2006, from Ann Walther, an attorney representing the Police Officers Federation of Minneapolis. In her letter, Ms. Walther asked the Commissioner to issue an advisory opinion regarding the Federation's right to gain access to certain data from the City of Minneapolis.</p> <p>IPAD, on behalf of the Commissioner, wrote to Craig Steiner, the City's Responsible Authority for Data Practices, in response to Ms. Walther's request. The purposes of this letter, dated December 14, 2006, were to inform him of Ms. Walther's request and to ask him to provide information or support for the City's position. On December 19, 2006, IPAD received a response, dated same, from Mr. Steiner.</p> <p>A summary of the facts is as follows. In a letter dated October 17, 2006, Ms. Walter asked to inspect the following data:</p> <p class="opinion_quote">All electronic mail, written correspondence or other documents sent or received by the following elected officials regarding: 1) the Police Officers' Federation of Minneapolis ( Federation ); 2) any member of the Federation Board . . . 3) the Minneapolis Civilian Review Authority ( CRA ) or 4) the CRA Work Group:</p> <p class="opinion_quote">Councilmember Betsy Hodges <br /> Councilmember Elizabeth Glidden <br /> Councilmember Ralph Remington <br /> Mayor R.T. Rybak</p> <p>Ms. Walther specified, The scope of this request applies to all data sent or received since January 1, 2006.</p> <p>In a letter dated November 15, 2006, Mr. Steiner responded and apparently provided Ms. Walther with some of the data she requested. He noted that certain data had been redacted pursuant to sections 13.43 and 13.601.</p> <p>In an email dated November 16, 2006, Ms. Walther wrote regarding the portions the City had redacted pursuant to section 13.43. She stated, . . . I am requesting that you provide me with the name of the employee whose personnel data it is. The name of the employee is public information.</p> <p>In another email dated November 16, 2006, Ms. Walther wrote, . . . I would like the names of the 'individuals' with whom each councilmember communicated which resulted in their declaring the data non-public under section 13.601. I would also like the names of all employees whose private personnel data was 'removed'.</p> <p>In an email dated December 1, 2006, Mr. Steiner responded:</p> <p class="opinion_quote">In response to your request for the names of the employees whose information was redacted or removed from the previously requested data, names of personnel are private data in the context of internal e-mail communications about their performance pursuant to Minn. Stat. section 13.43 subd. 2.</p> <p class="opinion_quote">In response to your request for the names of the persons who corresponded with the Council Members, which resulted in the invocation of the correspondence privilege, Minn. Stat. section 13.601 subd. 2 makes correspondence between elected officials and individuals private. The names of other individuals are part of the correspondence and are therefore private.</p> <hr /> <h2>Issues:</h2> <p>Based on Ms. Walther's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails?</li> <li>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of persons who corresponded with Council Members Glidden and Remington?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <h2>Issue 1</h2> <p><em>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails?</em></p> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. Data on individuals 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.</p> <p>In his comments to the Commissioner, Mr. Steiner wrote:</p> <p class="opinion_quote">In her letter to the Commissioner, Ms. Walther argues that the names of employees are always public. The City acknowledges her argument that [section 13.43, subdivision 2(a)(1)] provides that the name of an employee is public. However, the City disagrees that the name of an employee is public in all contexts. In certain contexts, identifying the name of an individual might result in the disclosure of private data. In such a case, the name cannot be released. For example, if a request for public data asked for the <u>number</u> of allegations of employee theft in the past year and also the <u>name</u> of any employee who had a complaint or charge against them during that same time period, and, if, in the hypothetical situation, the only complaint or charge against an employee received by the government entity during the relevant time period related to a single charge of an employee theft against a known employee, then release of the name would identify the nature of a complaint made (this example assumes that there has been no final disposition of a disciplinary action [and that the nature of the complaint is private data]). [Emphasis provided.]</p> <p class="opinion_quote">In the present context, the e-mails in question between elected officials related to their concerns that Police Department disciplinary practices or procedures may be deficient and/or their concerns that police administration was not imposing appropriate discipline in certain cases. In the context of these e-mails, identifying the employee would have resulted in providing private personnel data about the named employees, specifically the internal debate about the appropriateness of discipline or lack thereof for that particular employee. . . .</p> <p>The Commissioner agrees with Mr. Steiner and adds the following. Section 13.43 provides that certain data on individuals are public and some are private. An employee's name is one of the types of data that is listed as public. However, the fact that certain personnel data are private means there are situations in which an employee's name cannot be released because pairing the data with the employee's name would release data about that employee that are classified as private by section 13.43. Here, Mr. Steiner states that some of the requested data contain private data about City employees. Therefore, the data are not accessible to Ms. Walther.</p> <h2>Issue 2</h2> <p><em>Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of persons who corresponded with Council Members Glidden and Remington?</em></p> <p>Section 13.601, subdivision 2, provides that correspondence between individuals and elected officials are private data on individuals, but may be made public by either the sender or the recipient.</p> <p>In his comments to the Commissioner, Mr. Steiner wrote:</p> <p class="opinion_quote">. . . the City maintains that the purposes of Section 13.601 would be dramatically undermined if the identity of the correspondent with elected officials needed to be disclosed. Ms. Walther has argued that by failing to disclose the identity, the City is able to disguise whether the correspondent is a public employee and thereby allegedly misusing Section 13.601.</p> <p class="opinion_quote">The City is not invoking Section 13.601 improperly, nor are we seeking to hide the fact that the correspondent is a City employee. However, the context of the e-mails make [sic] it clear that the correspondent was acting as a citizen exercising First Amendment rights to petition elected officials. . . . From the context of the e-mails and consistent with the <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267360" title="98-052" target="_blank">Commissioners' opinion, 98-052</a>; as Responsible Authority I made a determination that the employee was acting as a private citizen in sending the e-mails. Admittedly, the employee used the City e-mail system to communicate with the Council Members, but the City's Electronic Communications Policy allows for limited personal use of the e-mail. . . .</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267360" title="98-052" target="_blank">Advisory Opinion 98-052</a>, the Commissioner discussed a situation in which the Clay County Sheriff wrote a letter to the Chair of the County Board. The Commissioner wrote:</p> <p class="opinion_quote">. . . if Sheriff Costello wrote the letter as an individual, rather than in his capacity as the Clay County Sheriff, the data can be classified as not public under [section 13.601]; but, if Sheriff Costello wrote the letter in his capacity as the Sheriff as part of his work, the data are presumed public unless classified otherwise by statute or federal law.</p> <p>Here, the Commissioner has not seen the data in question. Mr. Steiner states that the employees, acting in their capacities as citizens, not as employees of the City, wrote to the elected officials. Assuming this is the case, the City properly withheld the data in the emails.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Walther raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The City of Minneapolis complied with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails.</li> <li>Assuming the employees were acting as citizens, not as government employees, when they wrote to the elected officials, the City of Minneapolis complied with Minnesota Statutes, Chapter 13, in withholding data in certain emails pursuant to section 13.601.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 22, 2007</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674792666383793082662682663712022-02-02T14:08:28Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267058" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-19T16:14:43ZDid the Douglas County Sheriff's Office comply with Minnesota Statutes, Chapter 13, in refusing to provide certain data contained in traffic accident reports?January 19 2007; Douglas County Sheriff36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On December 13, 2006, IPAD received a letter dated same, from Jerod Ochsendorf. In his letter, Mr. Ochsendorf asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Douglas County Sheriff's Office. </p><p> IPAD, on behalf of the Commissioner, wrote to Troy Wolberson, Douglas County Sheriff, in response to Mr. Ochsendorf's request. The purposes of this letter, dated December 18, 2006, were to inform him of Mr. Ochsendorf's request and to ask him to provide information or support for the Office's position. The Commissioner did not receive a response from Sheriff's Office. </p><p> A summary of the facts as provided by Mr. Ochsendof is as follows. In a letter dated November 13, 2006, he asked for copies of the following data: Public data on any Motor Vehicle Accident (MVA) report including names and addresses of any victims involved in the MVA from September 2006-Present. </p><p> Mr. Ochsendorf further wrote, I believe this data is public record in accordance with Minnesota Statute 13.83 Subd. 6 and Minnesota Statute 169.09 Sub.13 clause A and clause D. </p><p> In a letter dated November 27, 2006, Christopher Karpan, Douglas County Attorney, denied the request for data. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Ochsendorf's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Douglas County Sheriff's Office comply with Minnesota Statutes, Chapter 13, in refusing to provide certain data contained in traffic accident reports?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Minnesota Statutes, section 169.09, relates to traffic accidents. It states that peace officers who investigate certain types of traffic accidents must report specific information to the Commissioner of the Minnesota Department of Public Safety. (See section 169.09, subdivision 8.) </p><p> Subdivision 13 of section 169.09 places restrictions on the use of and access to accident report data, but also provides situations in which certain data may be disclosed. Of relevance here is clause (d) of subdivision 13, which states, Disclosing any information contained in any accident report, except as provided in this subdivision, section 13.82, subdivision 3 or 6, or other statutes, is a misdemeanor. </p><p> Minnesota Statutes, section 13.82, subdivision 3, is the law enforcement data provision that addresses the classification of request for service data. Section 13.82, subdivision 6 addresses the classification of response or incident data. The operation of section 13.82 is such that the request for service data listed in subdivision 3 and the response or incident data listed in subdivision 6 are always public, regardless of whether there is an active criminal investigation. (During the time an investigation is active, certain other data are protected. See section 13.82, subdivision 7.) Of relevance to this opinion, pursuant to section 13.82, subdivision 6(h), the names and addresses of any victims are public unless their identities qualify for protection under section 13.82, subdivision 17. </p><p> In his November 27, 2006, letter, County Attorney Karpan wrote: </p><p class="opinion_quote"> Your request asks for public data on any motor vehicle accident report from September 2006 to the present date. If the motor vehicle accident reports you are referring to are the ones required by Minnesota Statute section 169.09 Subd. 8, those reports are private data and can only be released under certain circumstances, which are not present here. . . . There is no provision to allow the public to view every accident report completed as, again, the reports themselves are classified as private under Minnesota law. </p><p class="opinion_quote"> If the intent of your request was not the actual motor vehicle accident reports but any police reports containing any information about motor vehicle accidents, then I believe your response is overbroad. While certain response data on motor vehicle accidents is almost always public, much of the information on police reports is not, at least not until after I have made a charging decision. . . . </p><p> The Commissioner disagrees with the County Attorney's position. As discussed above, pursuant to section 169.09, subdivision 13(d), any request for service or response or incident data contained in an accident report described under section 169.09, are public. Because these traffic accident reports are official records pursuant to Minnesota Statutes, section 15.17, law enforcement agencies should be maintaining copies after submitting them to the Department of Public Safety. </p><p> Upon examination of Mr. Ochsendorf's data request, it appears he is asking for public data from recent traffic accident reports, of the type discussed above. Pursuant to section 169.09, subdivision 13(d), he is entitled to any request for service or response or incident data contained in the reports. </p><p> Finally, it is important to note that if the Sheriff's Office is maintaining data on traffic accidents, the type which do not require reports to the Department of Public Safety, any request for service or response or incident data are public. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Ochsendorf raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Douglas County Sheriff's Office did not comply with Minnesota Statutes, Chapter 13, in refusing to provide certain data contained in traffic accident reports. Any data of the type described in section 13.82, subdivisions 3 and 6 are public, except for identification data that specifically are protected. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: January 19, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2670582663042022-01-19T19:21:14Z266258266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267618" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-12T16:14:43ZDid the City of Silver Bay comply with Minnesota Statutes, Chapter 13, when it charged $86.91 to retrieve and copy 109 pages of government data?January 12 2007; City of Silver Bay36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> <p><strong>Note: There is an error in this opinion. The quoted language from Advisory Opinion 04-044 in the Discussion Section is from <a href="https://mn.gov/admin/data-practices/opinions/library/?id=36-267937" target="_blank">Advisory Opinion 04-055</a>.</strong></p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 11, 2006, IPAD received a letter from David Mealey. In his letter, Mr. Mealey asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data the City of Silver Bay maintains.</p> <p>In response to Mr. Mealey's request, IPAD, on behalf of the Commissioner, wrote to Tom C. Smith, Silver Bay City Administrator. The purposes of this letter, dated December 18, 2006, were to inform him of Mr. Mealey's request and to ask him to provide information or support for the City's position. On December 22, 2006, IPAD received a response from Mr. Smith. A summary of the facts as Mr. Mealey presented them follows.</p> <p>In a letter dated November 17, 2006, Mr. Mealey requested copies of all billing statements including the detail of charges to the City of Silver Bay by the law firm of Johnson and Morris for the period November 1, 2005 through October 31, 2006.</p> <p>In a letter dated November 20, 2006, Mr. Healey requested a copy of the retainer fee schedule approved by the [City] for services provided by the [same firm] to become effective January 1, 2007. Also requested are copies of all communications from Johnson and Morris regarding their request for an increase in their retainer fees.</p> <p>In a letter dated November 30, 2006, Mr. Smith responded that the data were ready, enclosed an invoice, and requested prepayment. Mr. Healey stated that he received copies of 109 pages, for which the City charged the following to retrieve and copy:</p> <p class="opinion_quote">Administrator Rate: $32.15 times; 1 1/2 hours = $48.22 <br /> Deputy Clerk Rate: $22.11 times; 1 3/4 hours = 38.69</p> <p>The total charge to retrieve and copy 109 pages was $86.91. In his opinion request, Mr. Mealey questioned the reasonableness of the City charging copy costs at the Administrator and Deputy Clerk's hourly rates given that [t]here are two additional employees in the city office, both of whom are lesser paid . . . I believe that either of the lesser paid employees were capable of performing the task. Mr. Mealey wrote, [f]urther, it appears that the data requested was not kept easily accessible because it took a total of 3 1/4 man-hours to retrieve and copy 107 [sic] pages of data.</p> <p>In his comments to the Commissioner, Mr. Smith wrote:</p> <p class="opinion_quote">I believe we strictly complied with the statute. In my experience, as the Silver Bay City Administrator, this was the first request for copies of government documents this office has ever received. As the Responsible Authority I believed I had the responsibility to personally address Mr. Mealey's request and to designate a member of my staff that could most competently and efficiently search for, retrieve and copy the data requested. It was my opinion that the Deputy Clerk-Treasurer was that person, since she handles the finances, receives and pays all bills. I did not feel that the other two lower paid employees could as efficiently do so in the same period of time.</p> <p class="opinion_quote">The City Attorney sends a statement each month for its retainer and expenses together with a detail of time. There are usually separate billings for special services in addition to the monthly retainer. The each [sic] of the statements usually consists of two to three pages stapled together. Those statement [sic] are placed in a packet with other bills and submitted to the Council for approval. The total City bills average one hundred per month. After approval, the bills are paid by the Deputy Clerk. All paid bills are assembled and placed in monthly packets. Those packets are readily accessible. After the year end audit they are placed in the archives. To meet Mr. Mealey's request, it was necessary for the Deputy Clerk to go to the archives, search through the bills and retrieve the monthly paid bills of Johnson Morris for November and December 2005. She would have to go through the packet of approximately 100 bills to pull out the Johnson Morris bills. She would do the same for each month's packet from January through October of 2006. Since the Johnson Morris bills usually were stapled, it would be necessary to remove the staples to copy. The 1-3/4 hours of time involved in searching for, retrieving and copying the requested data is most conservative and reasonable.</p> <p class="opinion_quote">As the Responsible Authority, I believed I had a duty to take the time to review the material to make certain it was complete and to participate in the search and retrieval of the requested data.</p> <p class="opinion_quote">Mr. Mealey also requested 'a copy of the retainer fee schedule . . . for services provided by the law firm . . . to become effective January 1, 2007' and 'all communications from [the firm] regarding their request for an increase in their retainer fees.' Since I attend all Council Meetings, where these matters were discussed, I felt I could most efficiently secure this material myself. It was necessary to go through correspondence over a period of time to search for, retrieve and make copies.</p> <p class="opinion_quote">I was being most conservative in a charge of only 1 1/2; hours for my time. I did not charge Mr. Mealey for the actual cost to the City of my time or for that of the Deputy Clerk. I only charged the actual wage costs. We could have charged the full labor costs of wages and benefits in order to compensate the city for 'actual costs of searching for and retrieving government data.'</p> <p>According to Mr. Smith, the City's actual hourly labor costs are: City Administrator, $46.20; Deputy Clerk-Treasurer, $34.36; Assistant Deputy Clerk, $28.38.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Mealy's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Silver Bay comply with Minnesota Statutes, Chapter 13, when it charged $86.91 to retrieve and copy 109 pages of government data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), when an individual requests copies of data of which s/he is not the subject:</p> <p class="opinion_quote">. . . the responsible authority may require the requesting person to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, [and] compiling . . . the copies . . . but may not charge for separating public from not public data. However, if 100 or fewer pages of black and white, letter or legal size paper copies are requested, actual costs shall not be used, and instead, the responsible authority may charge no more than 25 cents for each page copied.</p> <p>In addition, according to Minnesota Rules, section 1205.0300, . . . the responsible authority may charge a reasonable fee for providing copies of public data.</p> <p>Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>Mr. Mealey made two requests for data, dated November 17 and November 20, 2006. The City charged Mr. Mealey approximately $.80 per page. The Commissioner was not given information as to whether each request was for copies of fewer than 100 pages, or if one of the requests was for more than 100 pages. Neither Mr. Mealey nor Mr. Smith addressed the statutory requirement that limits a government entity to charging no more than $.25 per page for fewer than 100 pages. Given that Mr. Mealey made his second request three days after his first, and it involved related data, it is understandable that the City treated them as one request. However, the statute requires an entity to respond to each request individually. Thus, if each of Mr. Mealey's requests was for fewer than 100 pages of data, the City may not charge more than $.25 per page for the copies, or a total of $27.25.</p> <p>If one of Mr. Mealey's requests was for more than 100 pages, then the City was entitled to charge its actual, reasonable cost to provide copies of those data. Mr. Smith stated that as responsible authority, he determined that he and the City's Deputy Clerk-Treasurer could most competently and efficiently search for, retrieve, and copy the requested data. He also stated that the City did not charge Mr. Mealey its actual full labor costs to provide the data, but rather charged the two higher-paid employees' hourly rates excluding benefits.</p> <p>In Advisory Opinion 04-044, the Commissioner opined:</p> <p class="opinion_quote">The Commissioner has issued many advisory opinions regarding copy charges. He consistently has discussed that it is not appropriate for a government entity to charge the labor rate of a highly paid employee unless it is necessary for that particular employee to search for and retrieve the data or to make copies of the data. . . .</p> <p class="opinion_quote">In other words, as government entities determine the actual costs of searching for and retrieving, and making copies of data, they should take into consideration that any charges must be reasonable.</p> <p>The Commissioner has the following comments. Mr. Smith, as responsible authority, is in the best position to determine who among the City staff is best able to search for and retrieve requested data. However, as the Commissioner has opined previously, it is not reasonable to charge the highest labor cost to pull staples and make photocopies.</p> <p>Mr. Smith said that the City did not charge its actual labor cost, i.e., including benefits, as it is entitled to do. Mr. Smith stated that the City's actual labor cost for 3 1/4 hours at its two lowest paid employees' rates is higher than the cost it charged Mr. Mealey, namely $92.24 instead of $86.91. Thus, the actual cost is approximately $.85 per page of data, rather than the $.80 per page the City charged Mr. Mealey. The Commissioner finds either to be excessive.</p> <p>One of a government entity's responsibilities under Chapter 13 is to locate and provide data, in a reasonable amount of time, in response to data practices requests. To better comply with this requirement, section 13.03, subdivision 1, states that entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>Here, the City took 3 1/4 hours to locate and copy 109 pages of legal bills and correspondence, which seems excessive given the nature of the data requested. Based upon Mr. Smith's description, the Commissioner questions whether those data were easily accessible for convenient use. As noted above, a government entity's copy charges must be reasonable. For the reasons discussed, the Commissioner concludes that the City's charge of $.80 per page is not.</p> <p>Finally, although apparently not at issue here, the Commissioner reminds her readers that a government entity may not charge its time to separate public from not public data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issues that Mr. Mealey raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Silver Bay did not comply with Minnesota Statutes, Chapter 13, when it charged $86.91 to retrieve and copy 109 pages of government data. If the two requests were each for fewer than 100 pages, the City may not charge more than $.25 per page, or $27.25. If one request was for more than 100 pages, the City may charge its actual, reasonable cost to provide copies of those data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 12, 2007</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676182669362665672022-01-19T19:21:14Z266258266263266511266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266974" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2007-01-10T16:14:43ZDid Independent School District 531, Byron, comply with Minnesota Statutes, Chapter 13, in denying access to the following data relating to a hazing incident: the particular athletic team involved, the nature of the alleged hazing, the number of students disciplined, and the disciplinary action taken?January 10, 2007; School District 531 (Byron)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On November 6, 2006, IPAD received a letter dated November 3, 2006, from Mark Anfinson, an attorney representing the <i>Rochester Post-Bulletin</i>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding access to certain data from Independent School District 531, Byron. IPAD requested clarification, which Mr. Anfinson provided on November 20, 2006. </p><p> IPAD, on behalf of the Commissioner, wrote to Wendy Shannon, Superintendent of the District, in response to Mr. Anfinson's request. The purposes of this letter, dated November 28, 2006, were to inform her of Mr. Anfinson's request and to ask her to provide information or support for the District's position. On December 7, 2006, IPAD received a response, dated same, from Nancy Blumstein, an attorney representing the District. </p><p> A summary of the facts as provided by Mr. Anfinson is as follows. In his opinion request, Mr. Anfinson wrote: </p><p class="opinion_quote"> Recently, the [District] was embroiled in allegations that one of the school's athletic teams had been involved in a hazing incident. The controversy was widely publicized and became a major item of public concern in the district. </p><p class="opinion_quote"> Shortly after the allegations arose . . . a reporter for the <i>Post-Bulletin</i>, contacted Byron school authorities and requested certain information about the incident. [The reporter] knew that data identifying particular students could not be publicly disclosed, and therefore confined her request to more general information: the particular athletic team involved, the nature of the alleged hazing, the number of students disciplined, and what disciplinary action was taken. In response to this request, however, district officials declined to provide anything beyond the simple fact that allegations of hazing had been made, citing state data privacy laws. . . . </p><p class="opinion_quote"> At one point during the newspaper's efforts to obtain additional information about the hazing allegations, I spoke with an attorney for the school district about this matter. Her concern . . . was that if the non-identifying data the newspaper requested were disclosed and published, then at least a few people in the community who had somehow obtained other information regarding the incident might be able to add two and two and thereby deduce the identities of the students involved. . . . In our view, however, such an interpretation misconstrues the provisions of the Data Practices Act and grossly undervalues the public's right and need to know - something this particular incident graphically exemplifies. </p><p> Mr. Anfinson also wrote that the school board held a meeting in early October, which in part addressed the alleged hazing incident. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did Independent School District 531, Byron, comply with Minnesota Statutes, Chapter 13, in denying access to the following data relating to a hazing incident: the particular athletic team involved, the nature of the alleged hazing, the number of students disciplined, and the disciplinary action taken?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> The data at issue here relate to a hazing incident involving District students. Minnesota Statutes, section 13.32, classifies data on individuals that are about students. Generally, pursuant to section 13.32 and federal law, data about students are private; that a particular student was the victim of hazing and that another conducted the hazing would be private. </p><p> Minnesota Rules 1205.0200, subpart 4, further clarifies that data are data on individuals if the data identify an individual in itself, or can be used in connection with other data elements to uniquely identify an individual. </p><p> Also relevant here is that pursuant to section 13.02, subdivision 19, summary data are accessible to the public. Minnesota Rules 1205.0200, subpart 16, provides that summary data may include reports once all data elements that could link the data to a specific individual have been removed. </p><p> In her comments to the Commissioner, Ms. Blumstein wrote: </p><p class="opinion_quote"> The District's refusal to release information related to this hazing incident . . . was consistent with Minnesota law. </p><p class="opinion_quote"> The Department of Administration has recognized that public summary data can constitute private educational data if and when the release of the data can make a student's identity easily traceable and/or apparent. . . . This is exactly the situation presented here. </p><p class="opinion_quote"> The disclosure of the sports team involved would have confirmed the identity of the [student(s)] subject to discipline . . . Similarly, if the District disclosed the exact nature of the discipline imposed, community members would have been able to identify the [perpetrator(s)] . . . Information concerning the nature of the incident would have released private educational information about the [victim(s)], [whose identity(ies)] already appeared to be well known in the community. In fact, because of the very small size of the Byron Community, the School District believed that the release of any specific facts concerning the hazing incident would likely result in the inadvertent release of private education data. </p><p> In her request to the District, the newspaper reporter apparently asked for four separate pieces of information related to a hazing incident: the nature of the alleged hazing, the number of students disciplined, the particular athletic team involved, and the disciplinary action taken. Regarding the nature of the alleged hazing, it does not appear this is the type of data the release of which would identify any of the involved students. Therefore, such data are public and the District should have released the information. </p><p> However, the classification of the remaining information sought by the reporter may be more complicated. If, by stating the number of students disciplined and/or the particular athletic team involved and/or the type of discipline imposed, the District would, in effect, be identifying an individual student or students, the District cannot release the information. </p><p> For example, if the District disclosed the number of students disciplined and the number exceeded the number of players on all but one team, the District would, in effect, be identifying the team involved. So, if the team involved is known and the type of discipline, while not disclosed by the District, is something a member of the public would be able to observe at a public school event, a student or students would, in effect, be identified. In addition, because each school district can designate certain educational data as directory (public), it is possible an individual who accesses public directory information would be will be able to identify a student or students by combining the directory information with any data the District has released. </p><p> Here, the District clearly is in the best position to determine whether it can appropriately release the data in question because it is familiar with all the relevant facts. The key is that the data cannot be released if they alone identify an individual or can be used in connection with other data elements to uniquely identify an individual. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issues that Mr. Anfinson raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Independent School District 531, Byron, did not comply with Minnesota Statutes, Chapter 13, in denying access to the following data relating to a hazing incident: the nature of the alleged hazing. The Commissioner is unable to determine whether releasing the number of students disciplined and/or the particular athletic team involved and/or the disciplinary action would release private data about any District students. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: January 10, 2007 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2669742666382022-01-19T19:21:14Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267452" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-12-12T16:14:43ZDid the City of Rock Creek comply with Minnesota Statutes, Chapter 13, regarding its response to a September 22, 2006, request for access to certain data?December 12, 2006; City of Rock Creek36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On October 26, 2006, IPAD received a letter from Donald Burger. In his letter, Mr. Burger asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Rock Creek. IPAD requested clarification and additional information, which Mr. Burger provided on November 9, 2006. </p><p> In response to Mr. Burger's request, IPAD, on behalf of the Commissioner, wrote to Mr. Dennis Bonk, Mayor of the City. The purposes of this letter, dated November 13, 2006, were to inform him of Mr. Burger's request and to ask him to provide information or support for the City's position. On November 17, 2006, IPAD received a response from Heather Edmonds, Assistant Rock Creek City Attorney. </p><p> A summary of the facts as Mr. Burger presented them follows. In a letter dated September 22, 2006, Mr. Burger wrote to Sandra Pangerl, the City Clerk /Administrator, and stated, I make this request to your attention assuming that you are the 'acting' responsible authority absent the formal City Council designation. Mr. Burger wrote: </p><p class="opinion_quote"> I am asking to view the following information in either annual '05 or '06 City fiscal year form as it exists in City documents that will allow determining [sic] the following: </p><p class="opinion_quote"> - Gross pay/salary for each City employee and Council member </p><p class="opinion_quote"> - Individual benefit compensation amounts including retirement funds and insurance </p><p class="opinion_quote"> - Individual gross mileage reimbursement </p><p class="opinion_quote"> - Individual gross reimbursement for City expenses </p><p class="opinion_quote"> - Gross compensation for City Assessor, City Engineer, Building/Sewer Inspector </p><p> Mr. Burger clarified to the Commissioner that he was not asking to see pay stubs or tax withholding information. I am asking to see individual gross amounts in reference to my five bullet points. Mr. Burger enclosed the City's response to this request, and a copy of the minutes from the October 5, 2006, City Council meeting. </p><p> In her response, dated September 27, 2006, Ms. Pangerl wrote to Mr. Burger: </p><p class="opinion_quote"> Thanks for your interest on the subject of Chapter 13 Data Practices. This item has been placed on the agenda for the City Council's October meeting. </p><p class="opinion_quote"> As you are aware, I am lacking the proper authority from the City Council, and as such I can't do anything regarding your request. </p><p> The October 5, 2006, City Council minutes contain the following statement: </p><p class="opinion_quote"> [Mayor] Bonk stated the Minnesota Government Data Practices Act is a good idea to reflect on. This will be laid over to next month's meeting as we do not have a qualified staff member to do this. We have contacted the League of Minnesota Cities and the City Attorney regarding the matter and are waiting for further information and instructions. In reference to the letter received in the office dated September 22, 2006 [Mr. Burger's data request], all information requested is already published, monthly in the paper with the minutes and with the financial statement when it is published, the only requirement for PERA is the percentage number to be contributed. . . . Following the League of Minnesota Cities and the City Attorney's advice, the clerk responded to the requester with a letter dated September 27, 2006 letting him know that this will be placed on the City Council's October agenda, and lacking the proper authority from the City Council can not do anything regarding the request. </p><p> In her response to the Commissioner, Ms. Edmonds wrote: </p><p class="opinion_quote"> The City acknowledges that, pursuant to Minn. Stat. section13.43, Subd. 2, a City employee's gross salary and expense reimbursement are public data. The City's position on retirement funds, upon advice received from the League of Minnesota Cities, is that the percentage of PERA benefits paid by the City are public data. </p><p class="opinion_quote"> The information regarding City employee salaries and PERA benefits is published annually. In addition, at the February 2006 Council meeting, the City provided copies of the 2005 financial statement to members of the public present at the meeting who were interested in such information. The financial statement included all of the salary and PERA information for City employees. A copy of the 2005 financial statement is attached. The City does not pay any other benefits to its employees. </p><p class="opinion_quote"> Mr. Burger also requested information regarding expense and mileage reimbursement. City employees seeking reimbursement for expenses report those expenses to the Council. The Council then approves or denies the request, and the City Treasurer cuts a check to pay the request. The slip requesting reimbursement is retained by the City. The City acknowledges that it did not provide this information to Mr. Burger. </p><p class="opinion_quote"> The City has ordered training videos so City employees can better understand their obligations under the Data Practices Act. </p><hr /><br /><h2> Issue: </h2><p> Based on Mr. Burger's opinion request, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Rock Creek comply with Minnesota Statutes, Chapter 13, regarding its response to a September 22, 2006, request for access to certain data? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Pursuant to section 13.03, when a government entity receives a data request from an individual who is not the subject of data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Pursuant to section 13.43, subdivision 2 (a)(1), the data Mr. Burger asked to inspect are public. </p><p> In response to Mr. Burger's request, the City Clerk/Administrator told him that she lacked the proper authority to respond to his request, and that the City Council would consider the matter at its next meeting. At that meeting the Council determined that the matter would be laid over to next month's meeting as we do not have a qualified staff member to do this. </p><p> In her comments to the Commissioner, Ms. Edmonds stated that the City acknowledges that it did not provide Mr. Burger with access to the expense reimbursement data he requested. She also wrote that the salary and benefit data are published annually, and that, at the February 2006 Council meeting, the City provided copies of the 2005 financial statement to members of the public present at the meeting who were interested in such information. </p><p> The Commissioner has the following comments. Upon receipt of a request for access to government data under Chapter 13, the entity must either provide the requestor with access to the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. The City did none of those. Regardless whether the City had previously published the data, or had made the data available for public inspection at a council meeting, the City should have provided Mr. Burger with prompt access to the public data upon his request. </p><p> The Council's statement that no City staff is qualified or authorized to respond to requests for data is not acceptable. Apparently the City has not taken action to appoint a responsible authority, who, pursuant to section 13.02, subdivision 16, is the individual designated by the governing body of [a] political subdivision as the individual responsible for the collection, use, and dissemination . . . of government data. </p><p> Pursuant to Minnesota Rules, part 1205.1000: </p><p class="opinion_quote"> Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the governing body of each political subdivision . . . shall, by September 30, 1981, if it has not done so, appoint a responsible authority. . . . The governing body shall confer on the responsible authority full administrative authority to carry out the duties assigned by the act and by this chapter. </p><p> According to part 1205.0200, subpart 14 (B), the responsible authority for a city shall be an individual employee of the city appointed by the city council. </p><p> In addition, there is a requirement, effective August 1, 2000, that required the City Council to appoint a data practices compliance official by December 1, 2000. The data practices compliance official is to serve as the government employee to whom questions or concerns about data practices issues may be addressed. (See Minnesota Statutes, section 13.05, subdivision 13.) This requirement for the City to have a compliance official is in addition to the requirement that it have a responsible authority. </p><p> If it has not done so, the City should take the necessary action to appoint a responsible authority in order to comply with the requirements of Chapter 13 and its rules. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Rock Creek did not comply with Minnesota Statutes, Chapter 13, regarding its response to a September 22, 2006, request for access to certain data. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: December 12, 2006 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2674522665662665282022-01-19T19:22:29Z266258515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267013" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-11-30T16:14:43ZPursuant to Minnesota Statues, Chapter 13, what is the classification of the following data that the City of Mankato maintains: sales and use tax filings provided by businesses claiming hardship exceptions?November 30, 2006; City of Mankato36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On October 12, 2006, IPAD received an email, dated same, from Eileen Wells, Mankato City Attorney. In her letter, Ms. Wells asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the City of Mankato maintains. IPAD required additional information and clarification, which Ms. Wells provided on October 23, 2006. </p><p> In a letter dated October 25, 2006, IPAD invited the Minnesota Department of Revenue to provide comments. In a November 17, 2006, email, Richard Walzer, Attorney in the Legal Services Section, responded. </p><p> A summary of the facts is as follows. In her opinion request, Ms. Wells wrote, The City of Mankato has an ordinance prohibiting smoking in public places and places of work. There is a provision for a hardship exception. </p><p> Ms. Wells provided a copy of the ordinance language. The relevant section states that businesses seeking an exception must provide the following information to the City: </p><p class="opinion_quote"> . . . 2. Sales Tax statements prepared by a licensed certified public accountant comparing sales receipts for at least a three month period of compliance under this Section and the same time period in the year prior to compliance, or other periods acceptable to the City Managerhellip; </p><p> Ms. Wells wrote: </p><p class="opinion_quote"> The ordinance took effect July 1st of this year and we have now granted 14 exceptions. . . . Before granting the exception the City has required that each establishment provide a letter from a CPA comparing gross sales receipts for July, August and September 2005 to July, August and September 2006 and copies of the Sales and use tax filings to the Minnesota Department of Revenue for the same period. The information has been provided to the City by the businesses requesting the exceptions, not the Department of Revenue. The City has now received a request for the information used in determining eligibility for the exceptions. The City believes that the sales and use tax filings are confidential and unobtainable from the Department of Revenue. </p><hr /><br /><h2> Issue: </h2><p> Based on Ms. Wells' opinion request, the Commissioner agreed to address the following issue: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Pursuant to Minnesota Statues, Chapter 13, what is the classification of the following data that the City of Mankato maintains: sales and use tax filings provided by businesses claiming hardship exceptions? <p /></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. </p><p> In his comments to the Commissioner, Mr. Walzer wrote, in part: </p><p class="opinion_quote"> It is true that Minnesota Statutes, Chapter 270B protects sales and use tax return information filed directly with the Department of Revenue. </p><p class="opinion_quote"> Additionally, there are various provisions in that chapter authorizing tax information to be shared by the Department with other government entities for one purpose or another. In such cases, the data is protected by the entity receiving the data to the same extent that it is protected by the Department. However, in the situation presented here, the data is furnished by the taxpayers themselves directly to the City of Mankato. Consequently, it is the city's data, and its classification is governed by whatever data practices laws are applicable to Mankato. The data is not protected under the tax disclosure laws of Chapter 270B. </p><p> The Commissioner appreciates having received comments from Mr. Walzer and is in agreement with him that the data in question are not protected by Chapter 270B. As the Commissioner is not aware of any other law classifying the data as not public, they are public pursuant to section 13.03, subdivision 1. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Ms. Wells raised is as follows: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Pursuant to Minnesota Statues, Chapter 13, sales and use tax filings provided to the City of Mankato by businesses claiming hardship exceptions are public. <p /></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: November 30, 2006 </p><hr /><br /><p /></div></td></tr></tbody></table></body></div>2670132669002022-01-19T20:55:51Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267751" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-11-14T16:14:43ZDid the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council? Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: "NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information."November 14, 2006; Stillwater City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On October 2, 2006, IPAD received a letter, dated same, from Todd Remely. In his letter, Mr. Remely asked the Commissioner to issue an advisory opinion regarding actions by the Stillwater City Council (the Council) concerning a closed meeting of the Council that began on January 11, 2005 and was continued on January 12, 2005. Mr. Remely submitted the $200.00 fee required by section 13.072.</p> <p>On October 5, 2006, IPAD wrote to Jay Kimble, Mayor of the City of Stillwater. In its letter, IPAD informed Mr. Kimble of Mr. Remely's request and gave the Council, or any of its members, an opportunity to explain the Council's position. On October 26, 2006, IPAD received a response, dated same, from David T. Magnuson, the attorney for the City of Stillwater (the City).</p> <p>A summary of the facts presented by Mr. Remely is as follows.</p> <p>On January 11, 2005, the Council convened a closed meeting to interview candidates who had applied to fill a vacancy on the Council. The meeting was continued to January 12, 2005, and then an individual was selected to fill the vacancy. Prior to the meeting, the Council had published a notice, the content of which is contained in the second issue statement below. Publication of the notice in the <em>Stillwater Evening Gazette</em>, occurred on January 5, 2005.</p> <hr /> <br /> <h2>Issues: <br /></h2> <p>Based on Mr. Remely's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council?</li> <li>Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a . . . statutory or home rule charter city. Stillwater is a city and so its Council is covered by the OML.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs</em>., 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); see <em>St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).</p> <p><em>Prior Lake American</em> at 735. With this background, the next step is to review the issues presented by Mr. Remely.</p> <h2>Issue 1:</h2> <p><em>Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council?</em></p> <p>To fill a vacancy on the Council due to the resignation of one of its members, the Council accepted applications from individuals who wished to serve out the term. The Council appears to have followed the process described in section 412.02, subdivision 2a. The pertinent part of that subdivision states:</p> <p class="opinion_quote">. . . [A] vacancy in an office shall be filled by council appointment until an election is held as provided in this subdivision. In case of a tie vote in the council, the mayor shall make the appointment.</p> <p>The Council argues that the interviews were part of an election process and so required secrecy. The Council bases its argument on Article 7, Section 5 of the Minnesota Constitution which requires that elections be by ballot and that the ballots be secret. <em>See also</em> section 204C.17. This argument is, however, directly contrary to the statutory language in section 412.02 that draws a distinction between election and appointment to office. The circumstances here involve an appointment, not an election, and so the casting of a ballot protected by secrecy is not the issue. Rather, it is whether there was a basis on which the meeting could be closed.</p> <p>The OML contains specific provisions that direct when a meeting of a public body must be closed and when it may be closed. For example, a meeting to discuss an active criminal investigation being conducted by the police department must be closed. See section 13D.05, subdivision 2(a)(2). A meeting to evaluate the performance of an individual subject to the Council's authority, like the city administrator, may be closed. See section 13D.05, subdivision 3(a). There is no provision that requires or permits a meeting to be closed to interview candidates for appointment to the Council.</p> <p>Given the stated policy that the OML is to be construed in favor of public access, the Council did not comply with Chapter 13D when it closed its meeting on January 11 and 12, 2005, to interview candidates for appointment to the Council.</p> <h2>Issue 2:</h2> <p><em>Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.</em></p> <p>Section 13D.01, subdivision 3 states:</p> <p class="opinion_quote">Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.</p> <p>The Commissioner recently discussed the requirements of this provision. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267497" title="06-020" target="_blank">Advisory Opinion 06-020</a>, the Commissioner stated that section 13D.01, subdivision 3 requires that three things be done before a meeting is closed: (1) a statement be made on the record; (2) specific grounds permitting the closure of the meeting be given; and (3) a description of the subject to be discussed be provided.</p> <p>Neither party has provided information about whether the first requirement has been met. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267497" title="06-020" target="_blank">06-020</a>, the Commissioner found that the easiest way to satisfy the second requirement is to cite the statute that mandates or permits the meeting to be closed. As indicated in the discussion of Issue 1 above, there are no specific grounds that permit the meeting to be closed and none were listed in the notice that was published. The final requirement has been met as the notice does describe that the meeting was to be held to conduct interviews. Given the Council's failure to comply with at least one of the requirements, the notice was not in compliance with section 13D.01, subdivision 3.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Remely raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The members of the Stillwater City Council did not comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council.</li> <li>The members of the Stillwater City Council did not comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 14, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677512662872662892665932022-04-21T18:13:27Z266258375060266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266481" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-11-08T16:14:43ZIn determining whether a breach of security has occurred pursuant to Minnesota Statutes, section 13.055, may a government entity consider the fact that the data in question were encrypted?November 8, 2006; Minnesota Office of Enterprise Technology36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 1, 2006, IPAD received a letter dated same, from Christopher Buse, Chief Information Security Officer with the Office of Enterprise Technology (OET). In his letter, Mr. Buse asked the Commissioner to issue an advisory opinion regarding the classification of certain data OET maintains. IPAD requested clarification and additional information, which Mr. Buse provided in a letter dated September 21, 2006. </p><p> A summary of the facts is as follows. In his opinion request, Mr. Buse wrote: </p><p class="opinion_quote"> Minnesota Statutes Section 13.055 states that government entities must notify individuals after discovering that there has been a breach in security. . . . </p><p class="opinion_quote"> [Minnesota Statutes, section 13.055, subdivision 1(a)] defines a breach of security as an unauthorized acquisition that compromises the security and classification of the data. Data that is encrypted using modern encryption algorithms, such as the Advanced Encryption Standard, have virtually no chance of being decrypted by an individual who does not possess the cryptographic key. Therefore, even if encrypted data ends up in the hands of an unauthorized individual, the security and classification of the data is not in jeopardy. </p><p class="opinion_quote"> Notification is extremely expensive and results in a great deal of embarrassment for government officials. It also causes citizens to lose confidence in government's ability to protect their private data. Notification is important in situations where breached data is truly at risk. However, I do not believe that this is the case when data has been encrypted. . . . </p><p> Also in his opinion request, Mr. Buse discussed Minnesota Statutes, section 325E.61, which relates to notice requirements for private businesses in possession of certain electronic information. He noted that businesses do not need to notify individual data subjects of a breach of the security of the system if the data are encrypted. Although this may be the case for private businesses, section 13.055, which applies to government entities, does not provide such an exception if the data are encrypted. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Buse's opinion request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">In determining whether a breach of security has occurred pursuant to Minnesota Statutes, section 13.055, may a government entity consider the fact that the data in question were encrypted? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Minnesota Statutes, section 13.055, subdivision 2, states: </p><p class="opinion_quote"> A state agency that collects, creates, receives, maintains, or disseminates private or confidential data on individuals must disclose any breach of the security of the data following discovery or notification of the breach. Notification must be made to any individual who is the subject of the data and whose private or confidential data was, or is reasonably believed to have been, acquired by an unauthorized person. . . . </p><p> Section 13.055, subdivision 1(a), in part, defines breach of the security of the data as, unauthorized acquisition of data maintained by a state agency that compromises the security and classification of the data. </p><p> Section 13.055, subdivision 1 (c), defines unauthorized acquisition as a person has obtained government data without the informed consent of the individuals who are the subjects of the data or statutory authority and with the intent to use the data for nongovernmental purposes. </p><p> Mr. Buse's question is whether a government entity, in determining if a breach of security has occurred, may consider the fact that the data in question were encrypted. According to section 13.055, a security breach occurs when an unauthorized person obtains data, intending to use them for nongovernmental purposes, and the security and classification of the data are compromised. Clearly, if the data were encrypted, there is a stronger likelihood that the person who inappropriately obtained the data will not be able to read/understand them. If that person cannot read/understand the data, given the statutory definition of breach of the security of the data, it does not seem that a breach has occurred. Therefore, in the Commissioner's opinion, whether data are encrypted is one factor a government entity may consider when analyzing whether there has been a breach of security. </p><p> The Commissioner is aware that, generally speaking, there are varying methods and levels of encryption. Thus, when a government entity analyzes whether a breach of security has occurred involving encrypted data, the entity should consider the complexity of the encryption and the security of the keys. The more complex the encryption and the more secure the keys, the lesser the risk that the data have been breached. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Mr. Buser raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">In determining whether a breach of security has occurred pursuant to Minnesota Statutes, section 13.055, a government entity may consider the fact that the data in question were encrypted. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: November 8, 2006 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2664812664802022-01-19T19:22:28Z266258266272266420266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267419" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-10-19T15:14:43ZDid the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) "all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose"; and (2) "all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present?" Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: "all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999-2006?" Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: "list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board?" Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13 (in a timely and appropriate manner), to the following data request made on September 14, 2005: "provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present?" Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13, in denying access to certain data that were requested on July 27, 2006?October 19, 2006; Hennepin County Attorney's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 1, 2006, IPAD received a letter dated August 31, 2006, from Mark Stephens, Executive Director of the National Republican Senatorial Committee. In his letter, Mr. Stevens asked the Commissioner to issue an advisory opinion regarding access to certain data from the Hennepin County Attorney's Office (Office).</p> <p>In response to Mr. Stevens' request, IPAD, on behalf of the Commissioner wrote to Amy Klobuchar, Hennepin County Attorney. The purposes of this letter, dated September 12, 2006, were to inform her of Mr. Stevens' request and to ask her to provide information or support for the Office's position. On September 20, 2006, IPAD received a response, dated same, from Randy Johnson, Chair of the Hennepin County Board of Commissioners.</p> <p>On a procedural note, Commissioner Johnson objected to IPAD seeking a response from the County Attorney to Mr. Stevens' opinion request. Commissioner Johnson wrote:</p> <p class="opinion_quote">IPAD should have sent the letter to Gary Kamp, the Hennepin County Responsible Authority instead of Amy Klobuchar . . . In addition . . . [IPAD's] five proposed issues were incorrectly directed at the Hennepin County Attorney's Office. Hennepin County is the entity responsible for management of most, if not all, of the information requested by the National Republican Senatorial Committee's operatives. The request should have been issued to Hennepin County.</p> <p>Minnesota Rules, Chapter 1205.0200, subpart 14, states:</p> <p class="opinion_quote">For counties, each elected official of the county shall be the responsible authority for the official's office. An individual who is an employee of the county shall be appointed by the county board to be the responsible authority for any data administered outside the offices of the elected officials.</p> <p>The County did not provide the Commissioner with sufficient information to demonstrate that Mr. Kamp is the responsible authority for certain data relating to the County Attorney's Office. For instance, do the County's procedures relating to access of public data specify to data requestors which requests should be made to whom? In addition, in 2001, an individual requested an advisory opinion involving the Hennepin County Attorney's Office. The letter requesting comments was directed to the County Attorney and the issues were directed at her Office, not the County. IPAD received comments from a senior assistant county attorney and did not receive any objection from the County at that time.</p> <p>A summary of the facts is as follows. Beginning in a letter dated September 14, 2005, the Committee (or individuals working on its behalf) began requesting data relating to the Hennepin County Attorney's Office. The Committee requested an advisory opinion regarding whether the Office complied with Chapter 13 in responding to certain of the requests.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Mr. Stevens' opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present?</li> <li>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999-2006?</li> <li>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board?</li> <li>Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13 (in a timely and appropriate manner), to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present?</li> <li>Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13, in denying access to certain data that were requested on July 27, 2006?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.</p> <h2>Issue 1:</h2> <p><em>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present?</em></p> <h3>A. Travel records.</h3> <p>An individual working on behalf of the Committee requested from the County Attorney's Office, among other items, access to the travel records in a letter dated September 14, 2005.</p> <p>In a letter dated September 21, 2005, Mr. Kamp acknowledged receipt of the letter. He wrote, [Chapter 13 gives] the responding agency a reasonable time to respond to a data practices request. Because of the expansiveness of your request, I anticipate that it will take several weeks to assemble the information requested. I will contact you once the estimated dollar amount to process your request has been determined.</p> <p>In a letter dated January 13, 2006, an individual working on the Committee's behalf resubmitted the September 21, 2005, data request.</p> <p>In a letter dated January 17, 2006, Mr. Kamp wrote again, requesting payment of $50 in advance. He stated, Once payment is received by the County, the copying of the data will commence.</p> <p>In a letter dated February 2, 2006, an individual working on behalf of the Committee sent the requested prepayment of $50.</p> <p>In a letter dated May 12, 2006, Mr. Kamp wrote that he was attaching the following information: All travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney for the years 2004, 2003, 2002. County Attorney Klobuchar did not submit any travel reimbursement requests for the year 2005. Mr. Kamp further wrote, Hennepin County staff continues to assemble the data for years 2001, 2000, and 1999.</p> <p>In a letter dated May 25, 2006, Mr. Kamp wrote that he was attaching the following information: All travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney, for the years 1999, 2000 and 2001.</p> <p>In a letter dated May 31, 2006, Mr. Kamp wrote that he was attaching travel information to supplement year 2002.</p> <p>In his comments to the Commissioner (of Administration), Commissioner Johnson wrote:</p> <p class="opinion_quote">The gravamen of the [Committee's] complaint is that Hennepin County took too long to respond to its numerous and expansive requests. It only challenges the timeliness of responses to four (4) of the twenty-two (22) requests it made. It also challenges two (2) of Hennepin County's responses that denied access to certain data as not public or because it was not an appropriate data practices request. It cannot be contested that Hennepin County has expended significant time, valuable employee resources and taxpayer dollars in responding to the [Committee's] broad and expansive requests. . . .</p> <p>Commissioner Johnson also noted that between September 19, 2005, and June 5, 2006, the data requestor made written statements that she was appreciative of the County's responsiveness. He wrote, Since June 5, 2006, [Committee staff] has asserted that Hennepin County has not been responsive. Thus, almost nine (9) months elapsed without a complaint or statement of dissatisfaction. This claim of unresponsiveness is disingenuous and should be viewed for what it is, political maneuvering and strategy.</p> <p>On the issue of timeliness, Commissioner Johnson wrote:</p> <p class="opinion_quote">. . . To be sure, what constitutes a reasonable response time depends not only on the amount of data requested, but also on the complexity and difficulty involved in searching for the relevant information. . . . Hennepin County has produced almost 700 pages of data. The effort involved in locating this data, and attempting to ensure that no other responsive public information existed was substantial. To put this in perspective, over 400 bankers' boxes in the Hennepin County storage vault in the Hennepin County Government Center had to be located, retrieved, and sorted through just to locate the nearly eight (8) years of travel records. Each bankers' box contained several thousand individual pieces of paper. Public information was separated from nonpublic data. This locating, retrieving, sorting, pulling, copying and redacting took several hundred hours. Retrieving the travel records represents just one of the twenty-two (22) requests.</p> <p>The Commissioner has the following comments. As stated above, when an individual requests data of which s/he is not the subject, the government entity is required to respond promptly, appropriately, and in a reasonable time. In addition, pursuant to section 13.03, subdivision 1, entities must keep records containing data in such as arrangement and condition as to make them easily accessible for convenient use.</p> <p>There is no dispute that over the course of several months the individuals working on behalf of the Committee made numerous requests for data relating to the County Attorney. However, that does not mean the Office was relieved of its obligation to respond in a timely manner. The fact that the Office does not seem to have its files organized in a manner so that time spent locating data is kept to a minimum is not a burden that should be shifted to the data requestor. Further, the Office was obliged to respond in a timely manner regardless of whether the Committee appeared to be satisfied with the Office's responsiveness.</p> <p>The Committee made its initial request on September 14, 2005. It was not until May of 2006, eight months later, that the Committee received the data. The Office's response was not timely.</p> <p>An additional note is in order. In their policies regarding data practices requests, it may be useful for entities to include general standards for handling situations when a single party makes multiple data requests over a several month period of time. This will help ensure that entities respond to each request in a timely manner. The entity may choose to respond to each request in the order it was received. Or, the entity may ask the requestor to rank the requests in order of importance. Certainly, though, it is important for entities to seek clarification promptly regarding any request that is confusing or to identify any requests/questions that do not fall under the purview of Chapter 13. Also, if entities keep their data inventories up to date, determining the classification of certain data should be relatively uncomplicated. Finally, it is always important to keep in touch with the requestor on a regular basis by providing updates and data, as they are available.</p> <h3>B. Schedules.</h3> <p>It also was in the September 14, 2005, letter that the individual working on behalf of the Committee requested the schedule data. As discussed above, an individual resubmitted the request in a letter dated January 13, 2006, and in a letter dated February 2, 2006, she sent the pre-payment fee of $50.</p> <p>In a letter dated June 5, 2006, an individual working on behalf of the Committee wrote to inquire about several outstanding requests, including the schedule data.</p> <p>Mr. Kamp responded in a letter dated June 26, 2006, stating, This information is currently under review.</p> <p>In a letter dated July 27, 2006, the Committee asked again about the schedule data.</p> <p>In a letter dated August 25, 2006, Mr. Kamp denied access to the schedule records citing sections 13.43, 13.37, 13.39, 13.601, 13.80, 13.82, 13.822, 13.87, 13.875, and Minnesota Statutes, Chapter 611A.</p> <p>As stated above, when an individual makes a request for data of which s/he is not the subject, government entities must respond in an appropriate and prompt manner, and within a reasonable time. Here, the Committee initially requested the schedule data on September 14, 2005. It was not until July 26, 2006, ten months later, that Mr. Kamp informed the Committee that the data were classified as not public. This was not a timely response.</p> <h2>Issue 2:</h2> <p><em>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006?</em></p> <p>In a letter dated February 22, 2006, an individual working on the Committee's behalf requested All labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006.</p> <p>In a letter dated May 19, 2006, Mr. Kamp responded:</p> <p class="opinion_quote">Under Hennepin County's collective bargaining agreements, grievances are not filed against department heads. Rather, a labor grievance is filed against the employer which in turn is defined as the County of Hennepin. . . .</p> <p class="opinion_quote">The County Attorney's Office does not keep a centralized file of all its labor grievances; instead grievances are contained in the files of the employee involved. Similarly, the County's Labor Relations Department does not organize grievances by department; it files them by employee name.</p> <p class="opinion_quote">Accordingly, staff has been consulted with to try to create a list of all the grievances you are seeking. A total of nine grievances were located going back to 1994. . . .</p> <p class="opinion_quote">In addition, many of the relevant employees with whom to consult have moved on. If additional information is found, it will be forwarded to you.</p> <p class="opinion_quote">Attached please find copies of the documents. There are 36 pages. . . .</p> <p>In his comments, Commissioner Johnson reiterated that the County does not have a centralized filing system for grievances by department. He wrote, Hennepin County staff searched the relevant files in the Labor Relations Department and the Human Resources Department. County staff reviewed files of numerous current and former employees to ascertain whether they had any responsive information. At least sixteen (16) current or former employees were consulted in this process.</p> <p>The Commissioner (of Administration) has the following comments. The fact that the Office cannot easily locate grievances filed against the County Attorney should not significantly affect the response time. Chapter 13 confers upon individuals the right to request and gain access to data. The Committee asked for specific data - labor grievances filed against Amy Klobuchar - and the Office is obliged to provide those data regardless of how they are filed. The Committee made its request on February 22, 2006, and the County did not provide any data until May 19, 2006, three months later. This is not a timely response.</p> <p>The Commissioner notes that Mr. Kamp discussed creating a list of all the grievances. The Committee did not ask the Office to create data and, as previous advisory opinions have discussed, government entities are not required to create data to respond to a request.</p> <h2>Issue 3:</h2> <p><em>Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board?</em></p> <p>In a letter dated March 3, 2006, an individual working on behalf of the Committee requested the following records: a list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board.</p> <p>In a letter dated August 3, 2006, Mr. Kamp responded:</p> <p class="opinion_quote">Pursuant to Minnesota Session Laws 2000, Chapter 468 Sec. 31, Subd. 3b, the proceedings and records of the Domestic Fatality Review Team are not public. . . . The data received, kept, maintained and assembled by the Domestic Fatality Review Team are confidential data and protected non-public data as defined in Minn. Stat. section 13.02, Subds. 3 and 13, respectively.</p> <p class="opinion_quote">The domestic fatality review team prepares an annual report. This is a public document. I have attached a copy of the report.</p> <p>The Committee requested the data on March 3, 2006. Five months later, on August 3, 2006, the Office denied access because the data are classified as not public. The Office's response was not timely.</p> <h2>Issue 4:</h2> <p><em>Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13 (in a timely and appropriate manner), to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present?</em></p> <p>In a letter dated September 14, 2005, an individual working on behalf of the Committee requested all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to the present.</p> <p>In a letter dated June 26, 2006, Mr. Kamp wrote, It is estimated that this information will be sent the week of July 24, 2006.</p> <p>In a letter dated July 31, 2006, Mr. Kamp wrote, Attached please find the Hennepin County Attorney's Office caseloads for 1998 to 2005. This represents the most up-to-date information.</p> <p>In a letter dated August 4, 2006, the Committee wrote:</p> <p class="opinion_quote">. . . yesterday we received a one and one-half (1) page spreadsheet of selected case statistics. The spreadsheet lists only the number of cases charged for various offenses. Notably, the spreadsheet lacks numerous caseload statistics ordinarily tracked by prosecutorial offices. . . .</p> <p class="opinion_quote">The County Attorney has made several claims regarding her Office's performance . . . Assuming she relies on official caseload statistics, we expect to be provided with those same statistics.</p> <p>In a letter dated August 16, 2006, the Committee wrote that they had received a copy of a memo dated August 10, 2006, from the County Attorney's Chief Deputy: With regards to the memorandum . . . I am pleased to learn that Hennepin County tracks more caseload statistics than what your office initially provided. Now, more than 11 months later, all that remains is for your office to provide them.</p> <p>In a letter dated August 25, 2006, Ms. Jelink, Hennepin County Chief Information Officer, wrote:</p> <p class="opinion_quote">The request you made in your letter dated August 4, 2006, provided some clarification. This clarification was helpful, but uninformed and lacked general knowledge of the criminal justice system. . . . You will be provided with the caseload statistics referenced in . . . [the August 10, 2006 memorandum]. Mr. Kamp will be sending this responsive data under a separate cover letter.</p> <p>In a letter dated August 25, 2006, Mr. Kamp apparently provided additional caseload statistics including number of trial - court/bench and jury, conviction rate statistics - adult, adult career property cases, and mental health commitment petitions.</p> <p>An individual working on behalf of the Committee first requested caseload statistics on September 14, 2005. It was not until July 31, 2006, ten months later, that Mr. Kamp responded by sending certain statistical data. After the Committee objected, Mr. Kamp sent additional data on August 25, 2006. Given the response time requirements set forth in section 13.03 and Minnesota Rules 1205.0300, the Office's reply was not timely.</p> <p>On the issue of whether the Office's response was appropriate, the Commissioner offers the following comments. The Committee asked for caseload statistics. Nothing in Chapter 13 requires that the Office create additional data to respond to the Committee's request. Therefore, if the Office maintains additional statistics, it should forward those to the Committee promptly. If not, and the Committee is in possession of all caseload statistics, the County has responded appropriately.</p> <p>Finally, it appears from some of the County's comments that there may have been some question about what caseload statistical data the Committee was seeking. If the County was unsure, it needed to seek clarification - but should have done so shortly after the request was received. Also, the Commissioner encourages data requestors to try to be as specific as possible in identifying the data they are seeking.</p> <h2>Issue 5:</h2> <p><em>Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13, in denying access to certain data that were requested on July 27, 2006?</em></p> <p>In a letter dated July 27, 2006, the Committee made additional requests :</p> <ul> <li class="opinion_quote"> <p>List, describe, and document all legislation Amy Klobuchar in her capacity as Hennepin County Attorney proposed or sought to have enacted during her time as County Attorney. This includes, but is not limited to, legislation relating to criminal activity and firearms.</p> </li> <li class="opinion_quote"> <p>List, describe, and document all instances or programs since January 1999 where the Hennepin County Attorney worked with the various Hennepin County City Attorneys to set uniform prosecution standards.</p> </li> <li class="opinion_quote"> <p>List, describe, and document all instances since January 1999 in which the Hennepin County Attorney supported the construction of new jails or detention facilities.</p> </li> <li class="opinion_quote"> <p>List, describe, and document all instances since January 1999 in which the Hennepin County Attorney made the public aware of certain judges it believed had treated offenders too leniently.</p> </li> <li class="opinion_quote"> <p>List, describe, and document any programs instituted by the Hennepin County Attorney's office since January 1999 to train police officers.</p> </li> <li class="opinion_quote"> <p>List, describe, and document all instances since January 1999 in which the Hennepin County Attorney's office appealed criminal sentences it considered too lenient.</p> </li> <li class="opinion_quote"> <p>List, describe, and document all instances or programs since January 1999 in which the Hennepin County Attorney's office took steps to discourage gang membership. This includes, but is not limited to, measures to prevent children from joining gangs, to help current gang members quit, or to encourage gang tattoo removal.</p> </li> </ul> <p>In a letter dated August 11, 2006, Mr. Kamp wrote:</p> <p class="opinion_quote">These requests, however, are not really Data Practices Act requests . . . Neither Hennepin County, nor the County Attorney's Office have information organized in the very specific manner you are seeking.</p> <p class="opinion_quote">To be sure, the Data Practices Act does not require a government entity to have its data organized in a particular manner, or in the precise way a data requestor desires. . . . The Act also does not give the public the right to dictate the specific form in which the data to which they seek access are provided. Advisory Opinion 95-037.</p> <p>Commissioner Johnson wrote, [The July 27, 2006, requests] were not data practices requests, but framed as broad questions and not requests for data.</p> <p>The Commissioner (of Administration) agrees with the County's position. Chapter 13 confers upon individuals the right to gain access to data that exist. Here, as the questions are written, they are not the type of requests that fall under the purview of Chapter 13. Rather, they appear to ask the Office to make a list, write a description, and create documentation. Had the Committee, for example, asked the County Attorney's Office for copies of data that document any legislation Amy Klobuchar proposed or sought to have enacted during her time as County Attorney, the Office would have been required to respond as prescribed by Chapter 13.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Stevens raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present.</li> <li>The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006.</li> <li>The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board.</li> <li>The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statues, Chapter 13, to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present . The Commissioner is unable to determine if the response was appropriate.</li> <li>The Hennepin County Attorney's Office complied with Minnesota Statutes, Chapter 13, in responding to a request made on July 27, 2006.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 19, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674192662752662762668932022-01-19T19:22:28Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267888" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-10-02T15:14:43ZDid the City of Marshall comply with Minnesota Statutes, Chapter 13, when it denied access to the names of the two finalists for the position of economic development director?October 2, 2006; City of Marshall36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On August 18, 2006, IPAD received a letter dated same, from Mark Anfinson, an attorney representing the <i>Marshall Independent</i>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the City of Marshall. IPAD requested additional information and clarification, which Mr. Anfinson provided on August 22, 2006. </p><p> In response to Mr. Anfinson's request, IPAD, on behalf of the Commissioner, wrote to Mike Johnson, Administrator of the City. The purposes of this letter, dated August 24, 2006, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. On September 5, 2006, IPAD received a response, dated same, from Dennis Simpson, the Marshall City Attorney. </p><p> A summary of the facts as provided by Mr. Anfinson is as follows. In his opinion request, Mr. Anfinson wrote: </p><p class="opinion_quote"> The City of Marshall recently sought to hire a new economic development director. . . . four of the candidates were selected to be interviewed. At that point . . . they became finalists within the meaning of Minn. Stat. section 13.43, subd. 3, and the city did disclose their names to the newspaper. </p><p class="opinion_quote"> A few days later, however, the newspaper learned from the city administrator that the list of four finalists had been narrowed to two. It is not clear why the other two were dropped from consideration. In any event, the newspaper then asked for the names of the remaining two finalists. The city administrator refused to provide them. </p><p> Mr. Anfinson provided copies of related email correspondence he had with Mr. Johnson and Mr. Simpson. </p><p> In an email dated August 4, 2006, Mr. Simpson wrote to Mr. Anfinson: </p><p class="opinion_quote"> Mr. Johnson has provided to the Marshall Independent, the names of the four candidates interviewed. . . . The list of finalists includes all four candidates brought in for interviews. </p><p class="opinion_quote"> It appears the Marshall Independent is requesting a ranking or some other categorization of the finalists. Any such ranking or other categorization limits the ability of the City to negotiate a fair and equitable agreement with the successful candidate. Therefore, no additional information will be provided by the City to the Marshall Independent. </p><p> In an email dated August 7, Mr. Anfinson responded: </p><p class="opinion_quote"> . . . I am a little bit perplexed about the argument you make, however, since I didn't mention (nor has my client, as far as I know) anything about a ranking or some other categorization of the finalists. Instead, what the newspaper seeks are simply the names of the current finalists. The city administrator has told the Independent point-blank that only two finalists remain. As I wrote before, it seems to me pretty clear that where the law says the names of finalists are public, the fact that a long list of candidates has been reduced to a shorter one doesn't meant [sic] that the identities of the individuals on that short list are not public; they are the current finalists, and their identities are thus subject to disclosure. </p><hr /><br /><h2> Issue: </h2><p> Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Marshall comply with Minnesota Statutes, Chapter 13, when it denied access to the names of the two finalists for the position of economic development director?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Government data about job applicants are classified pursuant to Minnesota Statutes, section 13.43, subdivision 3. This provision, in relevant part, states, Names of applicants shall be private data except . . . when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, 'finalist' means an individual who is selected to be interviewed by the appointing authority prior to selection. </p><p> In his comments to the Commissioner, Mr. Simpson wrote: </p><p class="opinion_quote"> The City of Marshall reviewed all initial applicants and decided to interview four candidates for the position of Economic Development Director. The names and other disclosable information regarding those four candidates ( finalists ) were released to the Marshall Independent, . . . </p><p class="opinion_quote"> Thereafter, the four candidates ( finalists ) were interviewed by a series of committees as established by the City Administrator. . . . After the interview process, all four candidates remained as viable candidates for the position . . . </p><p class="opinion_quote"> The City Administrator then began the process of conducting additional background checks and reference checks for two of the four candidates. During this time frame, two of the four finalists withdrew their names from consideration. The City was then left with only two candidates for consideration. The City . . . then did hire one of the two remaining candidates . . . </p><p class="opinion_quote"> All four finalists as previously identified remained in the mix for consideration as the Economic Development Director. The ranking of those candidates on a scale of 1 - 4 is immaterial and irrelevant. To disclose the ranking of the candidates would do nothing but disrupt morale and would be counter productive to the successful completion of the hiring process . . . </p><p> The Commissioner has the following comments. Pursuant to section 13.43, subdivision 3, the name of an applicant who is selected to be interviewed by the appointing authority is public. Here, it appears the City initially considered four candidates to be finalists. At some point in the ensuing process, two of the finalists dropped out so two finalists remained. At that time, the City, in responding to a data request for the names of the finalists should have released the names of the two individuals. Although the Commissioner did not see a copy of any data request(s) made by the newspaper, Mr. Anfinson, in his email of August 2, 2006, asks for the names of the two remaining finalists. Pursuant to section 13.43, subdivision 3, the data are public. </p><p> Finally, Mr. Simpson appears to believe the newspaper asked for a ranking of the four candidates. Mr. Anfinson denies this assertion. As the Commissioner has not seen copies of any data requests (other than Mr. Anfinson's August 2, 2006, email), she is not in a position to comment. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Mr. Anfinson raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Marshall did not comply with Minnesota Statutes, Chapter 13, when it denied access to the names of the two finalists for the position of economic development director. <p /></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: October 2, 2006 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2678882665452663302022-01-19T19:22:27Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267124" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-09-28T15:14:43ZDid the members of the Breezy Point City Council comply with Minnesota Statutes, section 13D.04, subdivision 3 when they held an emergency meeting on July 24, 2006?September 28, 2006; Breezy Point City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 11, 2006, IPAD received a letter, dated September 5, 2006, from David Slipy on behalf of the board of directors of LAGT, Inc., an organization based in Breezy Point, Minnesota. In his letter, Mr. Slipy asked the Commissioner to issue an advisory opinion regarding actions by the Breezy Point City Council (the Council) concerning an emergency meeting of the Council held on July 24, 2006. Mr. Slipy submitted the $200.00 fee required by section 13.072.</p> <p>On September 13, 2006, IPAD wrote to Douglas Rach, Mayor of the City of Breezy Point. In its letter, IPAD informed Mr. Rach of Mr. Slipy's request and gave the Council, or any of its members, an opportunity to explain the Council's position. On September 26, 2006, IPAD received a response, dated September 25, 2006, from Steven R. Qualley, the attorney for the City of Breezy Point (the City).</p> <p>A summary of the facts presented by Mr. Slipy is as follows.</p> <p>At a regular meeting of the Council on June 5, 2006, it was decided that the City would issue a request for proposals (RFP) for building inspection services. The City had been receiving complaints about the services of the existing building inspector. An emergency meeting of the Council was held at 5:00 p.m. on July 24, 2006. The purpose of the meeting was to remove the City's building official and hire a new firm to fill that role.</p> <p>At the July 24th emergency meeting, the contract with the existing building inspector was terminated and an interim building inspector was hired from the respondents to the RFP. The Council made the appointment permanent at its August 7, 2006, regular meeting.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Sliipy's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the members of the Breezy Point City Council comply with Minnesota Statutes, section 13D.04, subdivision 3 when they held an emergency meeting on July 24, 2006?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a . . . statutory or home rule charter city. Breezy Point is a city and so its Council is covered by the OML.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); <em>see St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).</p> <p><em>Prior Lake American</em> at 735. With this background, the next step is to review the issue presented by Mr. Slipy.</p> <p>There are three types of meetings that a public body can conduct: a regular meeting, a special meeting and an emergency meeting. As its name suggests, a regular meeting of a public body occurs at the same time and place on a regular or routine schedule. For example, a city council might establish its regular meeting time as the second Monday of each month beginning at 7:00 p.m. Section 13D.04, subdivision 1 states that the schedule of regular meetings must be kept on file at the primary offices of the public body. No other notice of a regular meeting need be provided.</p> <p>A special meeting is conducted at a time or place other than the regularly scheduled meeting time or place. In fulfillment of the public's right to participate in its government that was noted in the <em>Prior Lake American case</em>, section 13D.04, subdivision 2 requires that notice of a special meeting be given either by posting notice on the principal bulletin board of the public body or on the door of the meeting room. Paragraph (b) of subdivision 2 requires that notice of special meetings be provided to those who have filed a written request for notice and that the notice be mailed or delivered at least three days in advance of the meeting.</p> <p>To hold an emergency meeting, the public body is required to make a good faith effort to notify any news medium that has filed a written request for notice. The statute also defines an emergency meeting as:</p> <p class="opinion_quote">. . . a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body.</p> <p>Section 13D.04, subdivision 3(e).</p> <p>There are no cases that describe the circumstances that fit this definition nor is there a further statutory definition of what constitutes an emergency.</p> <p>One of the rules of statutory construction in Minnesota is to use the common meaning of words that are otherwise undefined by the Legislature. Turning to the dictionary, emergency means</p> <p class="opinion_quote">1. A serious situation or occurrence that happens unexpectedly and demands immediate action. 2. A condition of urgent need for action or assistance.</p> <p><em>The American Heritage College Dictionary</em>, Houghton Mifflin Company, Boston 1997.</p> <p>The Council argues that the number of complaints regarding the services of the building inspector justified an emergency meeting. Mr. Slipy argues that by issuing an RFP for building inspector services, the City was not in an emergency situation that would justify an emergency meeting of the Council. The complaints received by the City were not unexpected; the Council had issued an RFP in June and was planning to decide whether to change building inspectors.</p> <p>The Commissioner must also consider the purpose of the Open Meeting Law's provisions as described in the <em>Prior Lake American</em> case. Applying the standards from that case to the concept of an emergency meeting leads to the conclusion that emergency meetings should be used rarely and for circumstances where public safety is jeopardized. Examples of emergency situations would include holding a meeting to respond to a natural disaster or to a health epidemic caused by an event such as an accident or terrorist activity.</p> <p>While understanding that there had been problems with the performance of the building inspector, the aggregated complaints did not rise to the level of emergency stated above. The Council could have taken action at a special meeting following a three day notice that would allow the public to detect improper influences, be informed of the Council's actions and to contribute to the discussion of the issue.</p> <p>Following the spirit of the Open Meeting Law that public bodies should act at open meetings with as much notice to the public as possible, it must be concluded that the July 24, 2006, emergency meeting of the Council did not comply with Chapter 13D.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The members of the Breezy Point City Council did not comply with Minnesota Statutes, section 13D.04, subdivision 3 when they held an emergency meeting on July 24, 2006.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 28, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2671242666582022-01-19T19:22:26Z266258266781266575266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267879" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-09-21T15:14:43ZWhat is the classification of the following data that Anoka County maintains: data indicating all licensed child care providers who have received child care assistance payment for services rendered in the past month?September 21, 2006; Anoka County36<p xmlns="http://www.w3.org/1999/xhtml"><strong>Note: This opinion has been edited to correct inaccuracies.</strong></p> <div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On July 26, 2006, IPAD received a letter dated July 24, 2006, from Jerry Soma, Division Manager of Anoka County Human Services. In his letter, Mr. Soma asked the Commissioner to issue an advisory opinion regarding the classification of certain data that Anoka County maintains. IPAD requested additional information and clarification, which the County provided on August 11, 2006.</p> <p>In a letter dated August 17, 2006, IPAD, on behalf of the Commissioner, invited the Service Employees International Union Minnesota Kids First to submit comments. IPAD did not receive comments from the Union.</p> <p>A summary of the facts as provided by Mr. Soma is as follows. He wrote:</p> <p class="opinion_quote">[The] data request . . . [seeks] program data concerning payments made by Anoka County to all child care providers - licensed and non-licensed - pursuant to the Child Care Assistance Program who received payments for services rendered in the most recent payment cycle.</p> <p class="opinion_quote">Anoka County is uncertain whether requested data about payment of child care assistance is classified as private data on individuals. . . .</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267698" title="06-013" target="_blank">Advisory Opinion 06-013</a>, issued at the request of Anoka County, the Commissioner addressed the classification of data relating to legal non-licensed child care providers. Thus, the analysis in this opinion will focus only on data relating to licensed child care providers.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Soma's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">What is the classification of the following data that Anoka County maintains: data indicating all licensed child care providers who have received child care assistance payment for services rendered in the past month?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Data on individuals relating to a welfare program are classified pursuant to section 13.46. In section 13.46, individual does not include a vendor of services.</p> <p>Subdivision 4 of section 13.46 provides various classifications for licensing data, which are defined as, all data collected, maintained, used, or disseminated by the welfare system pertaining to persons licensed or registered or who apply for licensure or registration or who formerly were licensed or registered under the authority of the commissioner of human services. (See section 13.46, subdivision 4(a)(1).)</p> <p>Child care providers are licensed pursuant to Minnesota Statutes, Chapter 245A, by the Commissioner of Human Services or the Commissioner's designated representative, including county agencies and private agencies. (See section 245A.02, subdivision 5.)</p> <p>In his opinion request, Mr. Soma wrote:</p> <p class="opinion_quote">Minn. Stat. Chap. 119B addresses the requirements on who is eligible to receive child care assistance funding (individual recipients) as well as requirements related to who may provide child care services to the recipient in order for the recipient to receive the funding. Child care assistance payments are made on behalf of a recipient to . . . [a] licensed child care provider.</p> <p class="opinion_quote">The child care assistance program is administered by the Minnesota Department of Human Services [DHS]. Programs administered by DHS are part of the welfare system. . . .</p> <p class="opinion_quote">The county does not contract with these individuals [an individual licensed under Minn. Stat. Chap. 245A]. They are not providing services to the county. They are providing services to a child care assistance recipient.</p> <p class="opinion_quote">If the child care assistance program determines that an overpayment has been made, the child care assistance recipient is responsible to repay the funds, not the child care provider. Payment data relates to specific recipients. . . .</p> <p class="opinion_quote">In the data request, [the Union compared payments made by the County to child care providers with payments made by the county to a foster parent]. Anoka County does not agree with this comparison. When a child is placed in foster care, the county makes the placement and is responsible for the payment. There is a direct relationship between the foster care provider and the county. The foster care provider does provide services on behalf of the county.</p> <p class="opinion_quote">In contrast, under the child care assistance program, the county does not place the child with the child care provider. Child care arrangements are made by the parent(s). Services are not provided at the request of or on behalf of the county.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267503" title="01-091" target="_blank">Advisory Opinion 01-091</a>, the Commissioner discussed data about child care providers and opined that, generally, such data are classified pursuant to section 13.46, subdivision 4. The Commissioner wrote:</p> <p>Here, the County asked the Commissioner to opine on the classification of data naming all licensed child care providers who have received child care assistance payment for services rendered in the past month. The operation of section 13.46, subdivision 4, is such that all licensing data are presumed private unless there is language specifically stating that certain of the data are public. (See Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267698" title="06-013" target="_blank">06-013</a>.) Nowhere in section 13.46, subdivision 4, does it state that the date on which a licensed day care provider receives a child care assistance payment is public. Therefore, the data are private.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Soma raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.46, subdivision 4, the following data that Anoka County maintains are private: data indicating all licensed child care providers who have received child care assistance payment for services rendered in the past month.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 21, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678792667432663532022-01-19T19:22:26Z266258266279266768266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267695" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-08-17T15:15:43Z Is the City of Rice in compliance with Minnesota Statutes, Chapter 13, if it releases certain data relating to vehicle accidents to Watab Township?August 17, 2006; City of Rice36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On July 17, 2006, IPAD received a letter dated July 12, 2006, from Thomas Wenner. In his letter, Mr. Wenner asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City of Rice maintains.</p> <p>A summary of the facts is as follows. In his opinion request, Mr. Wenner wrote:</p> <p class="opinion_quote">The City has a Fire Protection Agreement with Watab Township and under the terms of the Fire Protection Agreement provides fire protection and emergency services regarding property located in Watab Township and medical emergencies which occur in Watab Township.</p> <p class="opinion_quote">The Township has requested that the City supply certain information with respect to vehicle accidents such that the Township may exercise its authority under Minnesota Statute section366.011 to collect service charges for such services. The information requested is as follows:</p> <p class="opinion_quote">1. Name of each vehicle owner. <br /> 2. Name of vehicle insurance company for each vehicle. <br /> 3. Name of driver for each vehicle. <br /> 4. VIN number and vehicle license number for each vehicle. <br /> 5. Whether a call was a medical or rescue call.</p> <p class="opinion_quote">The township is not requesting information regarding the names or conditions of the victim or anything concerning the health care services which were provided to the victim.</p> <p>Mr. Wenner provided the Commissioner with a copy of the Fire Protection Agreement.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Wenner's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the City of Rice in compliance with Minnesota Statutes, Chapter 13, if it releases certain data relating to vehicle accidents to Watab Township?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Certain metropolitan townships are subject to the requirements of Chapter 13 pursuant to language in section 13.02, subdivision 11. To the best of the Commissioner's knowledge, Watab Township is not subject to Chapter 13. The following analysis is based on that assumption.</p> <p>The situation before the Commissioner is one in which, through a contractual relationship, a government entity subject to Chapter 13 (the City) is performing services on behalf of a person not subject to Chapter 13 (the Township). In providing services to the Township, the City apparently has collected and maintains certain data and now has inquired whether it may release those data to the Township.</p> <p>Clearly, if any of the data in question are public, the City must release those data to anyone, including the Township, who makes a request. Here, the Commissioner does not have enough information to determine the classification of the data.</p> <p>Generally, private government data about individuals can be disseminated to non-governmental entities only if there is statutory authority for the release or if the data subjects have consented to the release. In this case, the City did not provide any information suggesting there is statutory authority for the City to release the data or that the data subjects provided consent.</p> <p>The Legislature did recognize there are times when government entities contract with private persons. To address such situations, the Legislature, over the years, has adopted five provisions in Chapter 13: sections 13.02, subdivision 11; 13.05, subdivision 6; 13.05, subdivision 11; 13.35; and 13.46, subdivision 5. The Commissioner has examined each of these provisions and finds that none of them allows for the sharing of data in the scenario presented by Mr. Wenner. Section 13.05, subdivision 6, states, in any contract between a government entity subject to this chapter and any person, when the contract requires that data on individuals be made available to the contracting parties by the government entity, that data shall be administered consistent with this chapter. However, there is no language in the Fire Protection Agreement that discusses the City providing data to the Township. Thus, it does not appear, pursuant to Chapter 13, that the City may release the data in question to the Township, unless the data are public or the data subjects have consented to the release.</p> <p>The Commissioner acknowledges that this seems a peculiar result given the Township should have access to, at a minimum, data demonstrating that the City is fulfilling its terms of the contract. However, absent specific language in the contract regarding the sharing of data between the City and the Township, there does not appear to be authority for the City to release the data. Based on the language in section 13.05, subdivision 6, if the City's current or future contract(s) with the Township did discuss specifically the sharing of data, the data would be subject to the requirements of Chapter 13. As pursuant to section 13.02 and Minnesota Rules Section 1205.0400, subpart 2, private data is accessible to those individuals whose work assignments reasonably require access. Thus, Township employees who need the data to do their jobs would be granted access.</p> <p>Finally, given that government entities may increasingly be contracting out their services to private parties, it would be helpful for the Legislature to address issues related to data sharing.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Wenner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">It does not appear that, pursuant to Minnesota Statutes, Chapter 13, the City of Rice may release to Watab Township certain data relating to vehicle accidents.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 17, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676952663742666043792942022-01-19T19:22:26Z266258266394266375266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267610" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-08-17T15:14:43ZDid the Metropolitan Airports Commission comply with Minnesota Statutes, Chapter 13, regarding several requests, beginning April 19, 2002, for access to certain invoices for legal fees?August 17, 2006; Metropolitan Airports Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On July 6, 2006, IPAD received a letter from Guy Heide, on behalf of the Rogers Lake East Airport Noise Reduction Committee ( Committee. ) In his letter, Mr. Heide asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Metropolitan Airports Commission ( MAC. ) IPAD required clarification and additional information, which Mr. Heide provided on July 14, 2006.</p> <p>In response to Mr. Heide's request, IPAD, on behalf of the Commissioner, wrote to John Lanners, Chairman of the Metropolitan Airports Commission. The purposes of this letter, dated July 19, 2006, were to inform him of Mr. Heide's request and to ask him to provide information or support for the MAC's position. On August 2, 2006, IPAD received a response from Pamela J. Rasmussen, Deputy General Counsel for the MAC.</p> <p>By way of background, the dispute at issue here involves data related to the MAC's Part 150 Noise Abatement Program, a federal program that approves aircraft noise mitigation measures in communities surrounding an airport. According to Ms. Rasmussen, the MAC retained the services of Mr. Thaddeus R. Lightfoot, an attorney with the Environmental Law Group, Ltd. ( ELG ), to investigate and respond to accusations the Rogers Lake East Committee made to the FAA and numerous other federal, state, and local authorities. The Committee claims that MAC Commissioners, staff and attorneys have engaged in fraudulent, criminal, unethical or otherwise illegal conduct in the Part 150 process.</p> <p>A summary of the facts as Mr. Heide presented them follows. In a letter dated April 19, 2002, Mr. Heide asked the MAC to provide him with the opportunity to inspect and/or copy all invoices submitted to MAC by ELG for the months of January-April, 2002. Mr. Heide inspected the invoices on May 24, 2002. According to Mr. Heide:</p> <p class="opinion_quote">None of the inspected ELG invoices were stamped 'privileged' or 'confidential.' None of the inspected ELG invoices were redacted.</p> <p class="opinion_quote">Narrative portions requested payment for professional services on 'files' described as, <em>inter alia</em>, File 051-05 (DNL Contour Map Challenge), File 051-01 (General Environmental), File 051-03 (Lower Minnesota River Watershed District), File 051-04 (Fisher Sand Aggregate).</p> <p>Mr. Heide subsequently made similar requests for access to ELG invoices. He stated that the invoices the MAC provided had been redacted to conceal or mask government data in narrative portions. No ELG invoices were stamped 'privileged' or 'confidential.' Mr. Heide provided the Commissioner with copies of two representative redacted ELG invoices.</p> <p>In a letter dated April 9, 2003, the MAC responded to Mr. Heide's first request: [a]ll of the documents provided to you are entirely responsive to your request. As we have indicated to you previously, all communications between MAC staff and Mr. Lightfoot are attorney-client privileged. Therefore, those portions of the invoices were not provided. See Minn. Stat. 13.393. The MAC responded similarly to Mr. Heide's subsequent requests.</p> <p>In her comments to the Commissioner, Ms. Rasmussen wrote that Mr. Heide was incorrect in stating that the MAC provided him with access to unredacted invoices. She stated that the MAC redacted portions of each of the invoices to remove detailed descriptions of legal work. Ms. Rasmussen provided the Commissioner with unredacted copies of two representative ELG invoices.</p> <p>Ms. Rasmussen wrote:</p> <p class="opinion_quote">MAC provided copies of [the requested] invoices to Mr. Heide, but declined to produce the descriptions of work on these invoices on the grounds that these communications between MAC staff and ELG are protected from disclosure by the attorney-client privilege through Minn. Stat. section13.393. Descriptions of work on these invoices also are protected from disclosure by the attorney work-product doctrine and under Minn. Stat. section13.39, civil investigative data.</p> <p>Ms. Rasmussen further stated:</p> <p class="opinion_quote">Minn. Stat. section 13.393 allows certain data used, collected, stored and/or disseminated by an attorney acting in a professional capacity for a government entity to be protected from disclosure under the Data Practices Act. The Minnesota Supreme Court has described the attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. <em>Kobluk v. University of Minnesota</em>, 574 N.W.2d 436, 440 (Minn. 1998). In <em>Kobluk</em>, the court used a three-part test to determine whether documents were protected under attorney-client privilege: (1) whether they constitute a communication, (2) whether that communication was intended in confidence, and (3) whether the attorney was acting in the course of his professional duty. <em>Id.</em> at 441.</p> <p class="opinion_quote">In <em>City Pages v. Minnesota</em>, 655 N.W.2d 839 (Minn. App. 2003), the Minnesota Court of Appeals addressed the disclosure of attorney billing records for work done jointly for the state and another client under the Data Practices Act. The court found that the attorney billing statements were not protected from disclosure in their entirety by the attorney-client privilege, but there may be portions of the billing records protected under attorney-client privilege or the work-product doctrine. The Court of Appeals stated, in dicta, that the attorney-client privilege protects those parts of the billing records in which RKMC communicated legal advice that would not have been disclosed but for the existence of the privilege and that the work-product doctrine protects those parts of the billing records in which RKMC communicated opinions, conclusions, legal theories or mental impressions prepared in anticipation of litigation. 655 N.W.2d at 839. MAC is not obligated to provide Mr. Heide unredacted legal services invoices if there is attorney-client privileged or work-product information on those invoices.</p> <p class="opinion_quote">In a footnote in <em>City Pages</em>, the Court of Appeals noted that it examined sample RKMC billing records in camera and that those records contained a number of items, including (1) dates; (2) names of timekeepers; (3) numbers of hours worked; (4) generic descriptions of activities, e.g., review files, update database, prepare for deposition, search and retrieve files, research on summary judgment motion; (5) occasional references to legal theories that were the subject of research; (6) occasional references to the source of documents being reviewed; and (7) total fees and disbursements for the month. The Court further noted that much of the information in these records was not confidential and that the degree to which the billing records rendered legal advice was minimal: only those entries referring to specific legal theories even arguably meet this standard. <em>Id.</em> at 839.</p> <p class="opinion_quote">MAC has taken the reasonable position that much of the information on the ELG invoices is public, which is why MAC has already provided Mr. Heide copies of ELG invoices that contain dates, names of timekeepers, number of hours worked, names of files, total fees and disbursements and other information. However, unlike the data described by the court on the RKMC billing records, as a general matter of course ELG invoices contain detailed descriptions of confidential work, strategies and legal theories that are attorney-client privileged communications. ELG would not have used such detail if it thought these narrative statements were not in confidence.</p> <p class="opinion_quote">By providing the ELG invoices and showing the hours worked and the fees due, even without including detailed descriptions of work, a person who sees this data arguably may be able to determine legal strategy such as which claim MAC believes needs the most work to prepare a response to, or possibly which claim currently presented has the strongest arguments, or whether MAC is preparing a suit. If the detailed descriptions of work are provided as well, legal strategy will be revealed. . . . .</p> <p class="opinion_quote">Finally, it is the conclusion of MAC's General Counsel, Thomas W. Anderson, that data about Mr. Heide and the Committee are retained in anticipation of civil legal action. The background for this conclusion is set forth in the attached 2003 submission from MAC [relating to <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767" title="03-003" target="_blank">Advisory Opinion 03-003</a>.] As such, data describing the work done in anticipation of civil legal action is not public data available to Mr. Heide under Minn. Stat. section 13.39.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Heide's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Metropolitan Airports Commission comply with Minnesota Statutes, Chapter 13, regarding several requests, beginning April 19, 2002, for access to certain invoices for legal fees?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified.</p> <p>Pursuant to section 13.393:</p> <p class="opinion_quote">Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</p> <p>Section 13.393 does not classify data. Rather, it provides that certain data used, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.</p> <p>In her comments to the Commissioner, Ms. Rasmussen discussed in detail the MAC's claim that the redacted data are protected by the attorney-client privilege and/or are data that reveal an attorney's work-product. It is possible that certain of the data requested by Mr. Heide fall under the exemption in section 13.393. However, having examined the sample unredacted invoices, the Commissioner cannot determine whether the MAC's claim is appropriate. For additional guidance on the operation of section 13.393, see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267516" title="05-009" target="_blank">Advisory Opinion 05-009</a>.</p> <p>Ms. Rasmussen also stated that the data are protected from public disclosure under section 13.39, which provides, according to subdivision 2, that the following data are not public: data collected by [government entities] . . . which are retained in anticipation of a pending civil legal action. According to subdivision 1, whether a civil legal action is pending shall be determined by the chief attorney acting for the entity.</p> <p>According to Ms. Rasmussen, Thomas W. Anderson, the MAC's General Counsel, has determined that data about Mr. Heide and the Committee are retained in anticipation of civil legal action. Ms. Rasmussen stated that the background for this conclusion is set forth in the attached 2003 submission from the MAC, relating to allegations of accusations of criminal fraud the Committee made against the MAC staff. In that document, the MAC stated [t]he Committee's threat of litigation is apparent on the face of its correspondence with local, state and federal government representatives.</p> <p>Ms. Rasmussen did not provide the Commissioner with documentation of Mr. Anderson's determination that the disputed data are subject to protection under section 13.39. Thus, the Commissioner cannot determine whether Mr. Anderson had made such a determination at the time of Mr. Heide's requests, and so informed Mr. Heide. The first mention in the record before the Commissioner that MAC was relying upon section 13.39 as a basis for denying Mr. Heide access to the data was made by Ms. Rasmussen in her comments to the Commissioner.</p> <p>The Commissioner previously has opined that a government entity's chief attorney has substantial discretion to make the determination that data are protected under section 13.39 (see for example, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-266767#/detail/appId/1/id/267410" title="99-029" target="_blank">Advisory Opinion 99-029</a>), and given the history of the dispute between the Committee and the MAC, it is reasonable for the MAC to anticipate civil legal action. However, generally, the chief attorney for a government entity should make the determination that data are not public under section 13.39 early in the process, and communicate such clearly and promptly to a data requestor.</p> <p>The Commissioner has an additional comment. Pursuant to section 13.39, subdivision 2a, there is a remedy available to Mr. Heide and the Committee:</p> <p class="opinion_quote">During the time when a civil legal action is determined to be pending under subdivision 1, any person may bring an action in the district court in the county where the data is maintained to obtain disclosure of data classified as confidential or protected nonpublic under subdivision 2. The court may order that all or part of the data be released to the public or to the person bringing the action. In making the determination whether data shall be disclosed, the court shall consider whether the benefit to the person bringing the action or to the public outweighs any harm to the public, the agency, or any person identified in the data. The data in dispute shall be examined by the court in camera.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Heide raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Commissioner cannot determine whether the Metropolitan Airports Commission complied with Minnesota Statutes, Chapter 13, regarding several requests, beginning April 19, 2002, for access to certain invoices for legal fees.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 17, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676102666762666462022-01-19T19:22:25Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267849" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-08-11T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the complaint government data? If yes, what is the classification? What, if any, limitations are on employee A disclosing information to the media about the incident or the complaint? Pursuant to Minnesota Statutes, Chapter 13, is employee C's copy of the witness statement government data? If yes, what is the classification? Pursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the witness statement government data? If yes, what is the classification? What, if any, limitations are on employee C in giving information or a copy of the witness statement to employee A or to the media? What, if any, limitations are on employee A in giving a copy of a witness statement to the media? August 11, 2006; Minnesota Department of Health36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On June 30, 2006, IPAD received a letter dated June 28, 2006, from Dave Orren, the data practices compliance officer and responsible authority designee for the Minnesota Department of Health. In his letter, Mr. Orren asked the Commissioner to issue an advisory opinion regarding the classification of certain data. </p><p> A summary of the facts is as follows. In his opinion request, Mr. Orren wrote: </p><p class="opinion_quote"> Employee A prepares a written complaint alleging improper behavior by Employee B. Employee A submits a copy of the complaint to the agency and keeps a copy. Before any final disciplinary action is taken, Employee A discloses facts about the complaint to the media. </p><p class="opinion_quote"> Employee C was a witness to the incident between Employee A and Employee B. Employee C is interviewed about the incident and also prepares a written witness statement for the agency. Employee C submits a copy of the witness statement to the agency and keeps a copy. Before any final disciplinary action is taken, Employee C gives a copy of the witness statement to Employee A. Also before any final disciplinary action is taken, Employee A gives a copy of the witness statement to the media. </p><hr /><br /><h2> Issues: </h2><p> Based on Mr. Orren's opinion request, the Commissioner agreed to address the following issues: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> Pursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the complaint government data? If yes, what is the classification? </li><p /><li> What, if any, limitations are on employee A disclosing information to the media about the incident or the complaint? </li><p /><li> Pursuant to Minnesota Statutes, Chapter 13, is employee C's copy of the witness statement government data? If yes, what is the classification? </li><p /><li> Pursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the witness statement government data? If yes, what is the classification? <p /></li><li> What, if any, limitations are on employee C in giving information or a copy of the witness statement to employee A or to the media? <p /></li><li> What, if any, limitations are on employee A in giving a copy of a witness statement to the media? </li></ol></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Government data about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of data that are public and subdivision 4 classifies most other types of personnel data as private. </p><p> In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. Additional data become public when the entity makes its final decision about disciplinary action and a final disposition occurs (see section 13.43, subdivisions 2(a)(5), and 2(b). </p><p> In the situation Mr. Orren asked the Commissioner to address, no final disciplinary action has been taken. </p><h2> Issue 1: </h2><p><em> Pursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the complaint government data? If yes, what is the classification?</em></p><p> Section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained, or disseminated by any government entity regardless of its physical form, storage media or conditions of use. </p><p> Mr. Orren wrote that employee A prepared a written complaint about alleged improper behavior by employee B and that A kept a copy of the complaint. </p><p> In the Commissioner's opinion, the data in the statement employee A provided to the Department are government data. The statement contains data the Department, a government entity, collected and maintains. The fact that A possesses a copy of his/her statement does not change the fact that the statement is government data. </p><p> The Commissioner has not seen the complaint but assumes it contains data about both employee A and B. Because A and B are employees of the Department, data about them are classified pursuant to section 13.43. Regarding data about B, it would seem the only public data related to the complaint are the fact that a complaint was made and the status of the complaint. The remaining data about B presumably are private. The data about A in the complaint likely are private. </p><h2> Issue 2: </h2><p><em>What, if any, limitations are on employee A disclosing information to the media about the incident or the complaint?</em></p><p> In this situation, employee A plays two roles. One is as an employee of the Department. The second is as a subject of data. Mr. Orren did not provide any information suggesting that A, in his/her role as an employee, is either the Department's responsible authority or a data practices designee. Thus, the Commissioner assumes A is not responsible for handling release of the Department's data nor does s/he have authority to release the Department's data. However, A also is a subject of some of the data. In this capacity, A has the right to release any data about him/her. Thus, A may release data about him/her but not other of the Department's data. </p><h2> Issue 3: </h2><p><em>Pursuant to Minnesota Statutes, Chapter 13, is employee C's copy of the witness statement government data? If yes, what is the classification?</em></p><p> Similar to the discussion in Issue 1, employee C's copy of the witness statement is government data. </p><p> The Commissioner has not seen the witness statement but assumes it contains data about employees A, B, and C. Data about A, B, and C are classified pursuant to section 13.43. Most of the data about A and C likely are private as are most of the data about B. (See also Issue 1.) </p><h2> Issue 4: </h2><p><em> Pursuant to Minnesota Statutes, Chapter 13, is employee A's copy of the witness statement government data? If yes, what is the classification?</em></p><p> Similar to the discussion in Issue 1, employee A's copy of the witness statement is government data. See Issue 3 for comments about the classification. </p><h2> Issue 5: </h2><p><em>What, if any, limitations are on employee C in giving information or a copy of the witness statement to employee A or to the media?</em></p><p> See Issue 2. Employee C can release only data about him/her. </p><h2> Issue 6: </h2><p><em>What, if any, limitations are on employee A in giving a copy of a witness statement to the media?</em></p><p> See Issue 2. Employee A can release only data about him/her. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Mr. Orren raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> Pursuant to Minnesota Statutes, Chapter 13, employee A's copy of the complaint is government data. Its classification likely is a combination of public and private data. </li><p /><li> Employee A may disclose only data of which s/he is the subject. </li><p /><li> Pursuant to Minnesota Statutes, Chapter 13, employee C's copy of the witness statement is government data. Its classification likely is a combination of public and private data. </li><p /><li> Pursuant to Minnesota Statutes, Chapter 13, employee A's copy of the witness statement is government data. Its classification likely is a combination of public and private data. </li><p /><li> Employee C may release only data of which s/he is the subject. </li><p /><li> Employee A may release only data of which s/he is the subject. </li></ol></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: August 11, 2006 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2678492670172671192663282671712022-01-19T19:22:25Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267226" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-08-09T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, how are active warrants classified that are maintained by the City of Moorhead?August 9, 2006; City of Moorhead36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On May 24, 2006, IPAD received a letter dated May 17, 2006, from Robert Larson, Deputy Chief of the Moorhead Police Department. In his letter, Mr. Larson asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City of Moorhead maintains. IPAD requested additional information and clarification, which IPAD received on June 19, 2006.</p> <p>A summary of the facts is as follows. In his opinion request, Mr. Larson wrote:</p> <p class="opinion_quote">The Moorhead Police Department has received a request to allow public access to a spreadsheet containing all active warrants in Clay County. The access could be allowed via our website and/or a crime update email newsletter with a link to the spreadsheet. The newsletter is sent to anyone who requests it.</p> <p class="opinion_quote">The belief is that by allowing the public access to the list of active warrants, a public purpose would be served by receiving information from the public to apprehend offenders.</p> <p class="opinion_quote">Currently, the spreadsheet contains the name, date of birth, last known address and the reason for the issued warrant. Any of the aforementioned items could be removed from the spreadsheet if necessary. The spreadsheet also includes all active warrants for the entire county.</p> <p class="opinion_quote">The warrant information we are looking to use on our website is gathered from a query taken from the information entered and maintained in our local records management system. At the present time through a joint powers agreement with the Clay County Sheriff's Department they enter all warrants on persons that have been arrested by our agencies or have been cited/summoned, and filed to appear in court. This information is derived from the county attorney's office. This information is also submitted to the BCA.</p> <p class="opinion_quote">Our query is formatted in an excel spreadsheet, and only utilized by officers at this time to locate persons with outstanding warrants against them. This spreadsheet contains the date of the warrant, description of the warrant, the name of the person, DOB, and last known address. This spreadsheet contains warrants issued on the behalf of both agencies.</p> <hr /> <br /> <h2>Issue: <br /></h2> <p>Based on Mr. Larson's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, how are active warrants classified that are maintained by the City of Moorhead?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified.</p> <p>Chapter 13 does not provide a specific classification for data in arrest warrants, i.e., the data in the actual warrant documents. Therefore, unless there is a court order limiting access, the data are public pursuant to section 13.03, subdivision 1.</p> <p>Chapter 13, however, does provide a specific classification for data in arrest warrant indices. Subdivision 19 of section 13.82, provides, Data in arrest warrant indices are classified as confidential data until the defendant has been taken into custody, served with a warrant, or appears before the court, except when the law enforcement agency determines that the public purpose is served by making the information public.</p> <p>Chapter 13 does not define the term warrant indices. <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam Webster's Incorporated, 1996, defines index as a list arranged usually in alphabetical order of some specified datum</p> <p>Here, the City is interested in allowing access to a spreadsheet that contains a listing of active warrants. Mr. Larson wrote that the spreadsheet contains the name, date of birth, last known address, and reason for each warrant. In the Commissioner's opinion, this is a warrant index and the data contained therein are confidential, unless the City determines that the public purpose is served by making the information public.</p> <p>The Legislature, in not defining the term public purpose, left law enforcement agencies with some discretion in determining when to publicly release data in arrest warrant indices. Here, Mr. Larson wrote that the City wants to release data to enlist the assistance of the public in apprehending offenders. This appears to be a valid and worthwhile reason. Thus, because the City has determined there is a public purpose for releasing the data, the City may exercise its discretion under 13.82, subdivision 19, and make data public. If the City has not already done so, the Commissioner recommends it document its determinations regarding these matters.</p> <p>Finally, in his opinion request, Mr. Larson stated that the City maintains Clay County's warrant data pursuant to a joint powers agreement. The Commissioner does not have any details regarding the agreement and, therefore, is not in a position to comment as to whether the City can release any of the County's data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Larson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.82, subdivision 19, the City of Moorhead's listing of active arrest warrant data is confidential; however, the City may release the information as it has determined a public purpose is served. The data in the individual warrants are public pursuant to section 13.03, subdivision 1, unless there is a court order limiting access.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 9, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672262671342022-01-19T19:22:25Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267584" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-06-23T15:15:43ZWhat is the classification of the data contained in the letter, which was referenced in the March 10, 2006, Pequot Lakes School Board minutes and subsequently placed in the Superintendent's file?June 23, 2006; School District 186 (Pequot Lakes)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 5, 2006, IPAD received a letter dated April 4, 2006, from Kevin Rupp and Kimberley Sobieck, attorneys representing Independent School District 186, Pequot Lakes. In the letter, Mr. Rupp and Ms. Sobieck asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD required clarification, which Mr. Rupp and Ms. Sobieck provided on May 11, 2006.</p> <p>IPAD invited both the <em>Pine River Journal</em> newspaper and the data subject to submit comments. On May 25, 2006, IPAD received comments from Kelly Virden, editor of the newspaper. On May 26, 2006, IPAD received comments from the data subject's attorney.</p> <p>A summary of the facts is as follows. Mr. Rupp and Ms. Sobieck wrote:</p> <p class="opinion_quote">Recently, the [District's Board] received a complaint against the District's Superintendent. During a Board Meeting on March 10, 2006, the Board went into closed session to give preliminary consideration to the allegations against the Superintendent. Following the closed session, the Board passed a motion placing the Superintendent on paid administrative leave through June 30, 2006 and placing a letter in her personnel file. The Board considered the complaint matter concluded, and the Board imposed no resulting discipline.</p> <p class="opinion_quote">Two local newspapers requested the final disposition of any disciplinary action taken against [the Superintendent], together with the specific reasons for the action and data documenting the basis of the action. The Lake County Echo and the Pine River Journal asserted that the leave was disciplinary and consequently the data is public.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Rupp and Ms. Sobieck's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">What is the classification of the data contained in the letter, which was referenced in the March 10, 2006, Pequot Lakes School Board minutes and subsequently placed in the Superintendent's file?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Government 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. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge.</p> <p>If a government entity has taken disciplinary action and a final disposition has occurred, the following additional data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Section 13.43, subdivision 2(b), prescribes the point in time at which a final disposition has occurred:</p> <p class="opinion_quote">For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator.</p> <p>In their opinion request, Mr. Rupp and Ms. Sobieck stated, Neither the leave nor the letter was intended to be a disciplinary action imposed by the District.</p> <p>The Commissioner has the following comments. When someone complains about a government employee, unless and until there has been a final disposition, only the fact that a complaint exists and the status of the complaint are public. For there to have been a final disposition, the entity must have made its final decision about taking disciplinary action. Here, Mr. Rupp and Ms. Sobieck assert the District has not taken disciplinary action against the Superintendent.</p> <p>Upon examination of the letter in question, it appears that a complaint was made and that some investigation has taken place. It also appears, based on statements in the letter, that the letter does not constitute disciplinary action. If the District has not taken disciplinary action against the Superintendent, there cannot have been a final disposition and the data in the letter are private.</p> <p>Ms. Virden argues that based on the District's Policy 403 - <em>Discipline, Suspension, and Dismissal of School District Employees</em>, dated April 26, 2004, the Superintendent was disciplined. She states that according to the policy, placing an employee on a leave with pay is a disciplinary measure.</p> <p>Ms. Virden also asserts that because the Board's placement of the Superintendent on paid leave coincides with placement of a letter in her personnel file, it seems unlikely the letter was merely a warning requiring improvements.</p> <p>The District's Policy 403 lists some forms of discipline that may be imposed. (See Section IV.) Included in that list is disciplinary suspension, demotion or leave of absence with pay. (See Section IV (A)(4).) Mr. Rupp and Ms. Sobieck wrote:</p> <p class="opinion_quote">The newspapers assert that since a leave of absence with pay is listed as a form of discipline, the Board disciplined the Superintendent when it placed her on a leave of absence with pay.</p> <p class="opinion_quote">But the Board did not place the Superintendent on a disciplinary leave of absence with pay. Rather the Board placed the Superintendent on an administrative leave of absence with pay. Had the Board intended the leave to be disciplinary, the Board would not have used the term administrative; the Board would have utilized [the Policy's] terminology (i.e., a 'disciplinary leave of absence with pay. ) [Emphasis provided.]</p> <p>Additionally, it does not appear the District has followed the procedures for administering discipline that are set out in Section V of the policy. Thus, based on all of the above, the Commissioner finds nothing to indicate the District took disciplinary action and that a final disposition has occurred. The data in the letter, therefore, are private.</p> <p>A final note is in order. The District's action of putting the Superintendent on administrative leave with pay from March 10 to June 30, 2006, at the same time it closed a board meeting to discuss a complaint against her suggests that the leave is related to an investigation. If this is so, and the leave is not disciplinary, it would seem the investigation is still ongoing. If the District ultimately finds no basis for discipline, presumably, the reason for placing the Superintendent on administrative leave would cease to exist.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Rupp and Ms. Sobieck raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The data contained in the letter, which was referenced in the March 10, 2006, Pequot Lakes School Board minutes and subsequently placed in the Superintendent's file, are classified as private.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 23, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675842668572667522022-01-19T19:22:24Z266258266282266283266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267497" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-06-23T15:14:43ZDid the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: "If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions?" Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent? Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority?June 23, 2006; Minneapolis School Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On May 12, 2006, IPAD received a letter, dated May 10, 2006, from John P. Borger on behalf of his client the <em>Star Tribune</em>. In his letter, Mr. Borger asked the Commissioner to issue an advisory opinion regarding actions by the Minneapolis School Board (the Board) concerning (1) the notices provided before multiple meetings in 2005 and 2006 that were closed, (2) the summary that was provided of an evaluation of a particular employee, and (3) whether the Board could conduct multiple meetings to evaluate that same employee. Mr. Borger submitted the $200.00 fee required by section 13.072.</p> <p>On May 15, 2006, IPAD wrote to Joseph Erickson, chair of the Board. In its letter, IPAD informed Mr. Erickson of Mr. Borger's request and gave the Board, or any of its members, an opportunity to explain the Board's position. On June 7, 2006, IPAD received a response, dated same, from Allen E. Giles, the general counsel for the Minneapolis School District.</p> <p>A summary of the facts presented by Mr. Borger is as follows.</p> <p>Mr. Borger and his client, the <em>Star Tribune</em>, monitor the activities of the Board. One of the ways in which this is done is by receiving the notices issued before Board meetings. Mr. Borger presented information about 15 closed meetings held by the Board in late 2005 and early 2006. (The specific dates of the meetings and the content of the notices are in Issue Statement 1.) Of concern is the information provided in notices announcing these 15 meetings and whether it was sufficient to satisfy statutory requirements.</p> <p>Mr. Borger also presented information about the evaluation of an employee subject to the Board's authority and asked whether the statutory requirements were met. A statement was issued by the Board Chair (see the discussion of Issue 2 for the content of the statement) regarding the evaluation of the employee's performance on November 29, 2005. Mr. Borger and his client take the position that the statement was not sufficient. Additionally, Mr. Borger presented information about meetings held on September 6, 2005, and November 29, 2005, to evaluate this same employee's performance and asked whether the statute allows multiple meetings.</p> <p>In his submission, Mr. Giles noted that the evaluation of the employee in question began in July 2005 and the meeting was recessed and reconvened on a number of occasions until January 2006.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Mr. Borger's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions?</li> <li>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent?</li> <li>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>As a preliminary matter, there is no dispute between the parties that the Board is subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). As specifically provided in Minnesota Statutes, section 13D.01, subdivision b(1), the Board is required to comply.</p> <h2>Issue 1:</h2> <p><em>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions?</em></p> <p>Section 13D.01, subdivision 3 states:</p> <p class="opinion_quote">Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.</p> <p>This subdivision requires that three things be done before a meeting is closed: (1) a statement be made on the record; (2) specific grounds permitting the closure of the meeting be given; and (3) a description of the subject to be discussed be provided. It is Mr. Borger's position that for each of the meetings listed, these three things were not done.</p> <p>Mr. Giles addressed the first task noting that the Board Chair does announce the purpose of the closed meeting on the record. However, the content of any of the announcements made by the Board's Chair was not provided and so the Commissioner is unable to review them for compliance with the statute. As an announcement is statutorily required, the Board should continue to make these announcements giving content as is further described below.</p> <p>The second task is to provide specific grounds that permit the meeting to be closed. The Legislature has not indicated how the Board, or any other public body, should meet this requirement. There also are no cases that interpret this language, so it is appropriate to consider the plain meaning of the phrase specific grounds.</p> <p>According to <em>The American Heritage College Dictionary</em>, Houghton Mifflin Company, Boston 1997, specific means explicitly set forth; definite and grounds means the foundation for an argument, belief, or an action; a basis. Therefore, the Board needs to provide the definite basis for closing the meeting. The easiest way to accomplish this is to cite the statute that gives the Board the authority to close the meeting. The general notice that the Board used prior to the meeting dates listed in the issue statement does not include a citation to any statute.</p> <p>The final element to be considered is whether the notice that the Board has used describes the subject to be discussed. The Court of Appeals has provided direction on how this language is to be interpreted. In <em>The Free Press v. County of Blue Earth</em>, 677 N.W.2d 471 (Minn. Ct. App. 2004), the Court was asked to decide if a statement that a meeting is being closed for a discussion of pending litigation under the attorney-client privilege met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that attorney client privilege provided the grounds and pending litigation <em>identified</em> the subject to be discussed, but did not <em>describe</em> the subject as required by the statute. <em>The Free Press</em> at 476 (emphasis in the original).</p> <p>Applying the holding from <em>The Free Press</em> to these facts, the general statement used by the Board does not describe the subject to be discussed. The general statement does identify possible issues, but does not provide the specificity required by the Court.</p> <p>The Board is concerned with balancing access by the public with individual privacy. While the Commissioner appreciates the Board's concern, there are ways to provide the public with the specificity required by the statute without disclosing the specific individual involved. Mr. Borger provided several suggestions in his submission and the Commissioner will take this opportunity to offer guidance for others facing the need to provide notice before closing a meeting.</p> <p>Almost all public bodies subject to the OML will need at some point to consider allegations or complaints against an employee. According to section 13.43, subdivision 2(a)(4), the existence and status of any complaints against a public employee are public. What is not public is the basis or substance of the complaint or charge. To protect the privacy of the employee, the public body could indicate that it will be reviewing a complaint against an unidentified employee and give a general description of the basis or substance of the complaint. A second option would be to identify the employee and indicate that the public body will be considering an unspecified complaint or charge against the employee. Either method gives the public a description of what will be discussed at the closed meeting without violating the privacy rights of the employee.</p> <p>Another routine reason for a public body to close a meeting is to evaluate the performance of an employee subject to the body's authority. Section 13D.05, subdivision 3(a) requires that the public body identify the employee to be evaluated.</p> <p>A third basis for closing a meeting is to consider strategy for labor negotiations. According to section 13D.03, subdivision 1(b), a majority of the public body must vote to close a meeting for this purpose. Subdivision 1(c) directs that the time the closed session will begin and its location be announced at the public meeting. The description requirement of section 13D.01, subdivision 3 can be met by naming the union or group of employees involved in the negotiations.</p> <p>A fourth basis for closing a meeting is to discuss a matter covered by attorney-client privilege. As was outlined in <em>The Free Press</em> case, specificity is required. Mr. Borger has suggested that the public body could provide the names of the litigants, the venue or location of the court where the action is pending and the nature and substance of the legal matter. Providing the venue and description may be more complicated in those situations where a complaint has not yet been served and the public body needs to discuss the threat of litigation and a strategy for response with its attorney. That does not, however, mean that a description cannot be provided so that the public will understand what the public body is about to consider.</p> <p>The final basis for closing a meeting that will be discussed here is unique to school boards - closing a meeting to discuss discipline of a student. Section 13D.05, subdivision 2(a)(3) requires a meeting to be closed when data about a student will be discussed. According to section 13.32 and the federal Family Educational Rights and Privacy Act, 20 USC section 1232g and 34 CFR part 99, all data about a student are private, with limited exceptions. Discipline, including the possible expulsion of a student, is not one of the exceptions and so the school board will need to use care in describing the basis for closing this type of meeting. As was outlined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267851" title="01-053" target="_blank">Advisory Opinion 01-053</a>, age, grade level, gender, hometown, race and the act that is the basis for the discipline may all be disclosed, depending on the circumstances of the individual case. As was noted in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267851" title="01-053" target="_blank">01-053</a>, if any one of the elements listed above would identify the student involved (i.e.,only one male student from Anytown in grade 11), then that element cannot be disclosed. A school board and its attorneys will need to consider the appropriate elements to release on a case-by-case basis.</p> <p>A final note is needed. Neither of the parties addressed whether the notices that are the subject of this discussion were provided in advance of regular or special meetings of the Board. Section 13D.04, subdivision 1 only requires that a schedule of regular meetings be maintained in the files of the Board's primary offices with no further notice required.</p> <p>Before a special meeting, notice is required by section 13D.04, subdivision 2(a). Because of the need to provide notice of special meetings to parties who have filed a written request (see section 13D.04, subdivision 2(b)), the notice of a special meeting must be specific and the Board is limited to the topics stated in the notice of special meeting. For further discussion of notices for special meetings, see Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267471" title="04-004" target="_blank">04-004</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267582" title="04-057" target="_blank">04-057</a>.</p> <p>To summarize, the statement used by the Board in its meeting notices is not in compliance with the requirements of section 13D.01, subdivision 3. Assuming that this same language was used by the Board in its announcement prior to closing the meeting, the content of the announcements is also not in compliance. The Commissioner recognizes that there may be other information that is not part of this record that could change this conclusion.</p> <h2>Issue 2:</h2> <p><em>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent?</em></p> <p>Section 13D.05, subdivision 3(a) states:</p> <p class="opinion_quote">A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.</p> <p>For purposes of this issue, the focus is on the portion of paragraph (a) that requires a summary of the Board's conclusion once an evaluation is complete. According to Mr. Borger, the Board Chair made the following statement on November 29, 2005:</p> <p class="opinion_quote">The board just met in a closed executive session to discuss private personnel matters. First we discussed the superintendent's benchmark performance goals, and the board is continuing to review the superintendent's performance in accordance with the performance goals agreed to by the superintendent and the board earlier.</p> <p>Mr. Borger has argued that this statement is not sufficient to comply with the statutory requirements and cites several previous advisory opinions in support of his position. These Advisory Opinions, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267635" title="99-018" target="_blank">99-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/266799" title="02-021" target="_blank">02-021</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267659" title="02-035" target="_blank">02-035</a>, all support Mr. Borger's contention that the Board's statement is not a sufficient summary of the performance evaluation. The Commissioner has repeatedly opined that each salient point of the evaluation should be summarized so that the public is able to best understand the performance of the employee in question, whether that performance is good, bad, or indifferent. <em>See </em><a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267635" title="99-018" target="_blank">99-018</a>.</p> <p>However, according to Mr. Giles, the Board was not finished with its evaluation when the Board Chair provided information about the evaluation process on November 29, 2005. If the evaluation process was not complete, then the Board was not required to make a statement. It would have been better if the Board had taken the opportunity presented on November 29, 2005, to explain the evaluation process that it was using and to let the public know that the evaluation was not yet complete. While it can be argued that the phrase the board is continuing to review the superintendent's performance indicates the evaluation is not yet over, the phrase can also be interpreted as an indication that the superintendent's performance for a specific time period has been reviewed and that evaluation is complete. Given the ambiguity of the Board's statement, it is understandable why some members of the public would believe the evaluation was complete.</p> <p>There is a factual dispute between the parties whether the superintendent's evaluation was complete as of November 29, 2005. The Commissioner is unable to resolve this dispute and so cannot reach a conclusion about the status of the superintendent's evaluation, or whether the Board was in compliance with section 13D.05, subdivision 3(a).</p> <h2>Issue 3:</h2> <p><em>Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority?</em></p> <p>A meeting may be closed to evaluate the performance of an individual subject to the Board's authority. Section 13D.05, subdivision 3(a) (see Issue 2 above for text of section). The individual subject to the Board's authority in this case was the superintendent. The critical phrase for this issue is close a meeting. (emphasis added)</p> <p>Mr. Borger argues that the a means that a single meeting may be closed to evaluate the employee's performance. Mr. Giles indicates that there was a single meeting but that it began in July 2005, and was recessed several times as the evaluation was not complete.</p> <p>However, according to the materials provided by Mr. Borger, the first time that the Board provided notice that it was evaluating the superintendent's performance was in a meeting notice dated December 16, 2005, that described a meeting to be held Tuesday, January 17, 2006. The Commissioner has not been provided with any facts (such as meeting notices, minutes or transcripts of the meetings) that support Mr. Giles' assertion that the Board conducted a single meeting that was recessed several times.</p> <p>If the Board identified the superintendent as the employee about to be evaluated in July 2005, and if the meeting was recessed and resumed, then it appears that the Board has complied with section 13D.05, subdivision 3(a).</p> <p>If the Board did not identify the superintendent as the employee it was about to evaluate in July 2005, or if the meeting was not recessed and resumed, then the Board is not in compliance. If the Board was giving preliminary consideration to complaints or charges against the superintendent in July 2005, then section 13D.05, subdivision 2(b) <em>requires</em> the Board to close one or more meetings to consider the complaints or charges.</p> <p>The record here is not sufficient for the Commissioner to be able to determine if the meetings were for purposes of considering complaints or charges or whether the superintendent's performance was being evaluated. Therefore, the Commissioner is unable to determine whether the Board was in compliance with section 13D.05, subdivision 3(a).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The members of the Minneapolis School Board were not in compliance with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions and if no further information was provided at the time the meeting was closed.</li> <li>The Commissioner is unable to determine if the members of the Minneapolis School Board complied with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent as the evaluation of the performance because it is unclear whether the evaluation was complete.</li> <li>The Commissioner is unable to determine if members of the Minneapolis School Board were in compliance with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 23, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674972662872666292662902663902022-04-21T16:06:10Z266258266375266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267833" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-06-09T15:14:43ZDid the Minnesota Department of Labor and Industry comply with Minnesota Statutes, Chapter 13, regarding a December 13, 2005, request for access to data?June 9, 2006; Minnesota Department of Labor and Industry36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 14, 2006, IPAD received a letter dated same, from Cindie Charest. In her letter, Ms. Charest asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the Minnesota Department of Labor and Industry. The Commissioner required clarification that Ms. Charest provided on April 26, 2006.</p> <p>IPAD, on behalf of the Commissioner, wrote to Scott Brener, Commissioner of the Department, in response to Ms. Charest's request. The purposes of this letter, dated May 2, 2006, were to inform him of Ms. Charest's request and to ask him to provide information or support for the Department's position. On May 10, 2006, IPAD received a response, dated same, from Nancy Leppink, General Counsel for the Department.</p> <p>A summary of the facts is as follows. In her opinion request, Ms. Charest provided copies of certain documents.</p> <p>In a letter dated December 13, 2005, Ms. Charest wrote to the Department:</p> <p class="opinion_quote">Pursuant to your letter of October 28, 2005, you stated that upon completion of findings, all documents regarding my file(s) would be available to me.</p> <p>Now that your audit is complete, please provide me with the report of findings on my file(s), as well as all document considered evidence in the file, as well as letters to the opposing party</p> <p>In a letter dated December 15, 2005, the Department responded:</p> <p class="opinion_quote">In regard to your request for documents in the case file, I have been advised that those documents must be reviewed by the data privacy staff for redaction purposes. They will be forthcoming after the review, hopefully mailed by the end of the day on December 16, 2005.</p> <p class="opinion_quote">Apparently, on December 23, 2005, an attorney with the Department spoke by telephone with Ms. Charest and informed her that the data she had requested were private. In her comments to the Commissioner, Ms. Leppink wrote, [the staff attorney] spoke with Ms. Charest and advised her that the data she requested was protected under Minn. Stat. section 13.39 as protected nonpublic and confidential data and could not be provided to her. At Ms. Charest's request, Ms. O'Neil agreed to put the Department's determination in writing.</p> <p>In a letter dated December 30, 2005, the Department stated, It is the Department's position that the documents you requested are civil investigative data under Minnesota Statutes, section 13.39.The department will notify you in writing when the documents you requested become public.</p> <p>In a letter dated March 1, 2006, the Department wrote to Ms. Charest and advised that the original order has been rescinded. The Department further stated, The file is closed effective March 1, 2006, and has been referred to our legal services unit for review to determine public and private data.</p> <p>In a letter dated March 14, 2006, the Department wrote to Ms. Charest:</p> <p class="opinion_quote">Enclosed please find the public data maintained by the [Department] that is responsive to your data practices requests. The names, social security numbers and payroll data of other individuals employed by [the former employer] have been redacted from the documents provided to you. This data is not public pursuant to the protections set out in Minnesota Statutes, section 13.355 and section270B.01-.02 (2004). In addition, data that is protected by the attorney client privilege has also been redacted from the documents pursuant to Minnesota Statutes section 13.393.</p> <p>In her comments to the Commissioner, Ms. Leppink provided the following synopsis of the events leading to Ms. Charest's opinion request:</p> <p class="opinion_quote">In March of 2005, the Labor Standards Unit (LSU) of the Department received a wage claim from [Ms. Charest] alleging her former employer had failed to pay her all of the wages she owed her. Upon receipt of Ms. Charest's wage claim, the LSU initiated an investigation to determine whether [the former employer] failed to pay Ms. Charest wages in accordance with Minnesota's wage and labor laws. [In July 2005] the Department issued an Order to Comply: Labor Law Violation that the employer contested [in August 2005]. After receipt of the employer's contest, the LSU expanded its investigation to include additional employees formerly employed by the [employer]. Ultimately, the LSU concluded, based on employment records collected during its investigation, that it could not establish that [the former employer] had violated Minnesota's wage and hour laws in the payment of wages to her employees including Ms. Charest. After consulting with the Department's general counsel, Nancy Leppink and a staff attorney the LSU decided not to pursue further administrative action against the employer, rescinded its Order to Comply: Labor Law Violation, and closed its investigation file on March 1, 2006. The data collected during its investigation of Ms. Charest's wage claim includes data on several individuals including Ms. Charest and also data not on individuals.</p> <hr /> <br /> <h2>Issue:</h2> Based on Ms. Charest's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Minnesota Department of Labor and Industry comply with Minnesota Statutes, Chapter 13, regarding a December 13, 2005, request for access to data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>In her comments to the Commissioner, Ms. Leppink wrote, When the Department received Ms. Charest's December 13, 2005 letter it determined that the data Ms. Charest was requesting was protected under Minn. Stat. section 13.39 and was either protected nonpublic data or confidential data.</p> <p>Section 13.39, subdivision 2, states that data collected by government entities as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action are classified as confidential (data on individuals) and protected nonpublic (data not on individuals).</p> <p>Subdivision 1 of section 13.39, states, A 'pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the [government entity]. Generally, when an investigation becomes inactive, the data are public. (See section 13.39, subdivision 3.)</p> <p>In her comments to the Commissioner, Ms. Leppink wrote:</p> <p class="opinion_quote">the Supreme Court held in <u>Westrom v. Minnesota Dept. of Labor and Industry</u>, 686 N.W.2d (Minn. 2004), that even data created by the Department is protected by section 13.39 when it is inextricably linked to and [is] the product of the data collected by DOLI during its investigation. 686 N.W.2d at 34.</p> <p class="opinion_quote">Under Minnesota Statutes, section 177.27, subd. 1, the Commissioner has the authority to investigate wage claims or complaints by an employee against an employer if the failure to pay a wage may violate Minnesota law or an order or rule of the Department. Further, the Commissioner may issue an order requiring an employer to comply with any of the provisions of Minn. Stat. 177 and certain provisions of Ch. 181. Minn. Stat. section 177.24, subd.4 (2004).</p> <p class="opinion_quote">The data requested by Ms. Charest had been collected or created by the Department as part of its investigation initiated by her wage claim for purposes of the commencement of a pending civil legal action, and at the time of her request was being retained by the Department in anticipation of a pending civil legal action. At the time Ms. Charest submitted her request, the Department had issued the Order to Comply and it had been contested by the employer. Unless and until the order was rescinded or settled, the Department was required to proceed to an administrative hearing. The Supreme Court in <u>Westrom</u> made clear that the statutory requirement that the Commissioner refer the contest for an administrative hearing fit within the definition of pending civil legal action and any investigative data collected by the agency would need to be retained in anticipation of that pending civil legal action 686 N.W.2d at 36. Consequently, based on the language of Minn. Stat. section 13.39 and the Minnesota Supreme Court's decision in <u>Westrom</u>, the Department determined that the data requested by Ms. Charest was protected nonpublic data and confidential data and could not be provided to [her].</p> <p class="opinion_quote">Upon rescission of the Order to Comply and the closing of the investigative file on March 1, 2006, the Department determined that the data requested by Ms. Charest was, as of that date, inactive civil investigative data.</p> <p class="opinion_quote">[The data then were] reviewed by [a Department staff attorney] in order to determine whether any data in the file continued to be not public data. Based on this review the Department determined that the following data remained not public data: (1) The names, social security numbers and payroll data of individuals other then [sic] Ms. Charest, who had been employed by [the former employer] pursuant to the protections set out in Minnesota Statutes section 13.355 and section 270B.01-02 (2004) and (2) data that is protected by the attorney client privilege pursuant to Minnesota Statutes section 13.393.</p> <p>The Commissioner has the following comments. Ms. Charest requested data in a letter dated December 13, 2005. She is the subject of some of the requested data, but not all. Regarding the data of which Ms. Charest is not the subject, pursuant to section 13.03, and Minnesota Rules, section 1205.0300, the Department is required to respond in an appropriate and prompt manner and within a reasonable time. Regarding the data of which Ms. Charest is the subject, the Department is required to respond within ten business days. Apparently, on December 23, 2006, the Department advised Ms. Charest during a telephone conversation that the data she requested were classified as not public pursuant to section 13.39. The Department's response, thus, was timely. Further, the Commissioner agrees with the Department's position that the data were classified as not public during the time the investigation was active.</p> <p>When the investigation became inactive, however, the data became subject to the general presumption in section 13.03, subdivision 1, and are public unless otherwise classified. According to the Department, the investigation became inactive on March 1, 2006. At that time, Ms. Charest's data request remained before the Department and the Department was required to respond in the manner discussed above.</p> <p>In reviewing the Department's position regarding the data in the inactive file, the Commissioner agrees, in part, and disagrees, in part. First, pursuant to section 13.355, the Social Security numbers of individuals other than Ms. Charest are private data about those individuals and not accessible to Ms. Charest.</p> <p>Second, given the nature of the dispute between the Department, Ms. Charest, and her employer, it is possible that certain of the data requested by Ms. Charest fall under the exemption in section 13.393. However, because the Commissioner has not seen the data, she cannot comment on the appropriateness of the Department's determination. For additional guidance on the operation of section 13.393, see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267516" title="05-009" target="_blank">Advisory Opinion 05-009</a>.</p> <p>Finally, the Commissioner disagrees with Ms. Leppink's assertion that Minnesota Statutes, section 270B.02 classifies data in the investigative file as private. Chapter 270B applies to tax return information collected and maintained by the Minnesota Department of Revenue. The wage data Ms. Leppink provided to the Commissioner as part of her response to Ms. Charest's opinion request appear to be time sheet information submitted to the Department by the estate of Ms. Charest's former employer. To the best of the Commissioner's knowledge, these are not data that were provided to the Department (of Labor and Industry) by the Department of Revenue. Therefore, the wage data cannot be protected pursuant to section 270B.02, and are subject to the general presumption in section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Charest raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Minnesota Department of Labor and Industry did not comply with Minnesota Statutes, Chapter 13, regarding a December 13, 2005, request for access to data, when it withheld data pursuant to Minnesota Statutes, section 270B.02.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 9, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678332665442669002022-01-19T19:22:23Z266258266323266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267744" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-06-06T15:14:43ZDid the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a request for all public data related to a Minneapolis Police Department Internal Affairs Unit investigation of a complaint?June 6, 2006; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 19, 2006, IPAD received a letter from Eric Hageman, an attorney for X. In his letter, Mr. Hageman asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Minneapolis.</p> <p>In response to Mr. Hageman's request IPAD, on behalf of the Commissioner, wrote to Craig Steiner, responsible authority for the City. The purposes of this letter, dated April 25, 2006, were to inform him of Mr. Hageman's request and to ask him to provide information or support for the City's position. On May 9, 2006, IPAD received a response from Mr. Steiner.</p> <p>A summary of the facts as Mr. Hageman presented them follows. Mr. Hageman represents X, the parent of a minor, Y. Y was injured while being arrested by the Minneapolis Police Department; subsequently X filed a complaint with the City Internal Affairs Unit ( IAU. ) In a letter dated December 14, 2005, the City notified X that the IAU had completed its investigation, and that [a]fter a thorough investigation, and case review, the complaint was sustained and discipline has been imposed. (Emphasis omitted.) The letter also stated, [u]nder Section 13.43 of the Minnesota Data Practices Act, the law prohibits us from providing you with any further information about this case.</p> <p>In an e-mail dated January 25, 2006, to Patrick Marzitelli, Assistant City Attorney, Mr. Hageman wrote: I would like to obtain all of the documents in the [IAU] file, including copies of all of the statements, police reports, medical records, etc. Please let me know if you anticipate any problems fulfilling this request.</p> <p>Mr. Marzitelli responded by e-mail the same day and stated I'll look into this and report back to you no later than noon tomorrow. According to Mr. Hageman, Mr. Marzitelli faxed thirteen pages of documents to him on February 8, 2006.</p> <p>Mr. Hageman stated to the Commissioner that he was unsatisfied with the City's response and so wrote to Mr. Steiner, in a letter dated March 10, 2006, and requested any and all materials contained in the Internal Affairs case unit related to the investigation of [X's] complaint . . . Mr. Hageman cited Minnesota Statutes, section 13.43, subdivision 2(a)(5), stating that pursuant to same, the City was required to disclose as public data . . . 'the specific reasons for the [final disciplinary] action and data documenting the basis of the action'. He stated that if the City did not release the data, he would seek an advisory opinion from the Commissioner. Mr. Hageman referenced Advisory Opinion 97-048 in support of his position that the City should provide him with access to the data in question.</p> <p>In a letter to Mr. Steiner dated March 29, 2006, Mr. Hageman repeated his March 10, 2006, request for access to all documentation related to X's IAU complaint, and reiterated his intention to seek this opinion.</p> <p>In a letter dated April 12, 2006, Mr. Marzitelli wrote to Mr. Hageman:</p> <p class="opinion_quote">To date, you have received those portions of the 05-49 which we have determined to be <em>public</em>. These portions included the discipline work sheets (MP-1408) which set out the final disposition for the sustained allegations in file. Any specific reasons for the discipline imposed would be set out on the 1408 form under 'Final Disposition' on the bottom of the second page of each 1408. The data documenting the basis for the discipline is enclosed herewith.</p> <p class="opinion_quote">However, because 05-49 contains multiple officers (5) each having multiple allegations, the complete file cannot be released to you as it contains private personnel data about complaints for which no discipline resulted. The file, as it's been requested by you, has several outcomes for each officer and for each allegation.</p> <p class="opinion_quote">Although you rely upon, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/266295" title="97-048" target="_blank"><em>Advisory Opinion 97-048</em>, Opinion 97-048</a> stands for the unremarkable proposition that data documenting the basis for a disciplinary action is public. It is distinguishable because it does not address the issue of multiple data subjects with multiple allegations contained within the same file. In the case such as the present one, only the specific reasons for the discipline and the data documenting the basis for the discipline can be released to the public.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Hageman's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a request for all public data related to a Minneapolis Police Department Internal Affairs Unit investigation of a complaint?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. Pursuant to section 13.03, when a government entity receives a data request from an individual who is not the subject of data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Under section 13.03, subdivision 3, government entities are required to provide access to public data, even when that requires separating public from not public data.</p> <p>Government data about current and former employees are classified at section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Here, X made a complaint against employees of the Minneapolis Police Department, which the IAU investigated. As a result of the investigation, some of the charges against some of the employees were sustained, and the City imposed disciplinary action. Mr. Steiner did not state explicitly that, pursuant to section 13.43, subdivision 2(b), final disposition of the disciplinary action has occurred, however, from the context, the Commissioner assumes that it has. According to Mr. Steiner, the IAU file contains a mixture of public and not public data.</p> <p>In his April 12, 2006, letter to Mr. Hageman, Mr. Marzitelli informed him that the City had provided him with the public portions of the investigative file, but that the complete file was unavailable because there are multiple data subjects with multiple allegations contained within the same file.</p> <p>In his comments to the Commissioner, Mr. Steiner wrote:</p> <p class="opinion_quote">In Mr. Hageman's April 17, 2006 letter he acknowledges that he is not entitled to release of the <em>complete</em> Internal Affairs Unit (IAU) file because some of the data therein relate to complaints for which no discipline resulted. The City agrees with Mr. Hageman on this point. Unfortunately, Mr. Hageman's position on this issue was not clear until the City received a copy of this letter to the Commissioner of Administration. Mr. Hageman now asserts 'that the City clearly misapprehend[ed] the nature of [his] narrowly-tailored request for public data'. Review of the correspondence leading up to his request for a Commissioner's Opinion does not support Mr. Hageman's current assertion that he was only asking for public data out of the file. Instead, his prior correspondence reasonably led the City staff to the conclusion that he was seeking access to an unredacted copy of the entire file based upon the fact that a couple of officers were disciplined as a result of the investigation, notwithstanding the fact that some allegations against those officers were not sustained and all allegations against other officers were not sustained. Thus, the correspondence trail between Mr. Hageman and the City was directed toward Mr. Hageman's apparent position that he should be entitled to an unredacted copy of the complete file.</p> <p class="opinion_quote">Now that the issue in controversy has been resolved with Mr. Hageman's concession that the City was right as to its position that he was not entitled to an unredacted copy of the complete file, the remaining question is whether the City's production of data relating to the sustained allegations was sufficient. . . . . The City produced the documents reflecting the specific reasons for the discipline of [some of the officers investigated in connection with X's IAU complaint] and also produced a redacted copy of a memo describing a pre-disciplinary hearing that documented the basis for the action.</p> <p class="opinion_quote">Mr. Hageman now claims that he should be entitled to other portions of the file, redacted to protect private data on other officers. Upon review of the file, the City agrees. We have completed the editing of the file and will provide Mr. Hageman today with a copy of edited Internal Affairs statements, police reports and photographs that address the issue of why the three officers were disciplined. In reviewing the file for this purpose, it became apparent that [IAU] obtained medical data on the juvenile pursuant to a signed release for the data that limited the Police Department's use to the investigation. It is the City's position that Mr. Hageman would not be entitled to the medical data on the juvenile because it was received pursuant to a limited release. In addition, to the extent that the photographs or the police reports would identify the arrested juvenile, they are protected pursuant to Minn. Stat. section 260B.171. It may be that Mr. Hageman represents the juvenile and would be able to obtain a release for the juvenile data, but to this point, he has not produced one. Accordingly, data identifying the juvenile have been redacted from the copy that is being produced for Mr. Hageman.</p> <p>The Commissioner has several comments about the City's response to Mr. Hageman's request for access to data related to final disciplinary action. In its December 14, 2005, letter to X, informing him/her that the City had taken disciplinary action in response to her/his complaint, the City stated: [u]nder Section 13.43 of the Minnesota Data Practices Act, the law prohibits us from providing you with any further information about this case. Clearly, under section 13.43, subdivision 2(a)(5), that statement is not correct.</p> <p>Regarding Mr. Marzitelli's statement to Mr. Hageman that the complete file cannot be released to you because it contains a mixture of public and private data on multiple data subjects, the Commissioner has issued numerous opinions that advise that government entities must provide access to public data, even if that requires them to separate public from not public data. Furthermore, Chapter 13 regulates access to government <u>data</u>, not documents, records or files.</p> <p>In addition, Mr. Steiner suggests the City reasonably concluded that Mr. Hageman thought he was entitled to the complete, unredacted file, and its response was directed thus. According to Mr. Steiner, Mr. Hageman did not clarify his position that he sought only public data related to the investigation and resulting discipline until he requested this Opinion. However, in his March 10, 2006, follow-up to his earlier requests to the City for the data, Mr. Hageman cited section 13.43, subdivision 2(a)(5), and stated that the City was required to disclose <u>as public data</u> . . . 'the specific reasons for the [final disciplinary] action and data documenting the basis of the action'. (Emphasis added.) The Commissioner does not agree with the City that Mr. Hageman was unclear as to the scope of his request. If the City needed to, it was obligated to seek clarification from Mr. Hageman promptly upon receipt of his request.</p> <p>In his response to the Commissioner, Mr. Steiner acknowledges that the City did not provide Mr. Hageman with access to all of the data he requested and was entitled to, and that it was preparing to do so, nearly six months after his initial request. That response is neither prompt nor reasonable.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Hageman raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Minneapolis did not comply with Minnesota Statutes, Chapter 13, in responding to a request for all public data related to a Minneapolis Police Department Internal Affairs Unit investigation of a complaint.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 6, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677442663282666682022-01-19T19:22:23Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267022" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-05-25T15:14:43ZDid the members of the Spring Grove City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, on March 31, 2006, when a majority voted by telephone to hire a candidate for the position of accountant?May 25, 2006; Spring Grove City Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 19, 2006, IPAD received a letter, dated April 14, 2006, from Mark R. Anfinson on behalf of his client the <em>Spring Grove Herald</em>. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding a series of telephone calls between the city administrator and members of the Spring Grove City Council (the Council) on March 31, 2006. The Commissioner required clarification of the issue to be addressed and that was received on April 20, 2006. Mr. Anfinson submitted the $200.00 fee required by section 13.072.</p> <p>On April 24, 2006, IPAD wrote to Pearl Holland, Mayor of Spring Grove and chair of the Council. In its letter, IPAD informed Mayor Holland of Mr. Anfinson's request and gave the Council, or any of its members, an opportunity to explain the Council's position. On May 23, 2006, IPAD received a response, dated May 16, 2006, from Joseph Hammell, the attorney for the City of Spring Grove.</p> <p>A summary of the facts presented by Mr. Anfinson is as follows.</p> <p>In the process of hiring a new accountant, the City of Spring Grove designated a hiring committee that solicited and screened applicants for the position and developed a slate of finalists. The top candidate declined an offer of employment; the second candidate resigned after a week on the job.</p> <p>On March 31, 2006, the city administrator conducted a telephone poll of four of the members of the Council who each responded yes to the proposal to hire the third candidate for the accountant position. One of the members of the Council, Karen Folstad, wrote a letter to the editor of the <em>Herald</em> that was published on April 12, 2006. In that letter, Council Member Folstad confirmed the process that was used and indicated that the four votes represented a majority of the Council.</p> <p>According to Mr. Hammell, on March 31st, the city administrator contacted each council member to determine whether the third candidate should be contacted about the job. As described by Mr. Hammell, the city administrator indicated that each council member was told that if the third candidate expressed interest in the position, hiring would be subject to council approval.</p> <p>A special meeting of the Council was held on April 14, 2006, for the purpose of hiring an accountant. Mr. Hammell indicates that the members of the Council made the hiring decision at the meeting.</p> </div> <hr /> <h2>Issue:</h2> <p>Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the members of the Spring Grove City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, on March 31, 2006, when a majority voted by telephone to hire a candidate for the position of accountant?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a statutory or home rule charter city. Spring Grove is a city and so its Council is covered by the OML.</p> <p>As noted by Mr. Anfinson, there is a quorum rule for bodies covered by the OML. In essence, when a quorum of the members of a public body subject to the OML want to discuss or decide public business, that discussion or business must occur at a public meeting. <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510 (Minn. 1983). As part of its discussion in Moberg, the Supreme Court directed members of a public body not to use serial meetings in groups of less than a quorum to avoid a public hearing or reach an agreement on a particular issue. <em>Moberg</em> at 518.</p> <p>The conduct at issue here is whether there was a serial solicitation of approval to hire a candidate for the position of accountant in the City of Spring Grove by the city administrator. There is no language in the OML that authorizes members of a public body to vote by telephone. If the members of a public body are unable to gather in person, then section 13D.02 authorizes the use of interactive TV, if certain preconditions are met.</p> <p>The letter to the editor from Council Member Folstad that was published in the <em>Herald</em> on April 12th seems to indicate that a serial vote occurred. However, the response by the City states that the statements by the council member were not accurate. Instead, the City states that There was no discussion with more than one council member at a time by [the city administrator] and no discussion was held between council members about this issue. There is a disagreement whether a vote was taken or whether there were simply one-on-one discussions that there was a need to fill the position. This factual dispute means that the Commissioner cannot resolve the issue presented.</p> <p>In its submission, the City suggests that it is appropriate for the city administrator to follow standard operating procedure by notifying council members of the resignation and that the third candidate would be contacted. The Commissioner believes that it would be possible for the Council, at an open meeting, to have established a procedure that would give the city administrator the authority to act in the manner described. However, the disputed facts here prevent a determination whether there was a procedure in place and how it was followed.</p> <p>The round robin style of contact was discussed by the Court of Appeals in <em>Mankato Free Press Co. v. City of North Mankato</em>, 563 N.W.2d 291 (Minn. Ct. App.1997). While that case involves the use of round robin interviews to hire a city administrator, the Court noted that the OML was enacted to benefit the public and must be construed in the public's favor. <em>Mankato</em> at 294, citing <em>Claude v. Collins</em>, 518 N.W.2d 836, 841 (Minn. 1994). If, as suggested by Council member Folstad's letter, a majority of the members of the Council took action with respect to the hiring of the accountant, then the OML has been violated. That the city administrator served as the go-between among the members should not change the outcome, given the manner in which the OML is to be construed.</p> <p>The Commissioner will also take this opportunity to remind members of public bodies that the OML requires that public business be conducted in public. <em>St. Cloud Newspapers, Inc. v. District 742 Community Schools</em>, 332 N.W.2d 1, 4-5 (Minn. 1983). While it may be appropriate for the city administrator to inform council members that a City employee has resigned, the better process would be to convene a special meeting of the Council to discuss what the appropriate next step(s) are in the hiring process. Avoiding public scrutiny of a decision by having a city employee serially contact Council members is the type of conduct that was of concern to the Supreme Court in <em>Moberg</em>.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Anfinson raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Under the Open Meeting Law, Minnesota Statutes, chapter 13D, it is not appropriate for members of a public body to vote by telephone to hire a candidate for a position. However, in this case, there is a factual dispute between the parties and so the Commissioner is unable to determine if a violation occurred.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 25, 2006</p> <hr /> </td> </tr> </tbody> </table> </div>2670222662552663632022-04-27T21:14:48Z266258266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267725" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-05-17T15:14:43ZBecause Minnesota Statutes, section 299A.465, subdivision 6(a), classifies applications and supporting documents as private data, can those documents be released to claimant's employers, who would be responsible for the continuing health benefits of the claimant should the Panel determine that claimant is eligible for continued health benefits, to allow employers to present evidence either in support of or denial of the claim? Can the Panel close a portion of a meeting to discuss a claimant's medical data pursuant to Minnesota Statutes, section 13D.05, subdivision 2(a)(3)? Do the provisions of Minnesota Statutes, section 299A.465, subdivision 6(a) that classify an application and supporting documents as private data, prohibit the Panel from discussing the name of a claimant in an Open Meeting?May 17, 2006; Public Safety Officer Benefit Eligibility Panel36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> <p><span style="font-weight:bold">Note: Minnesota Statutes 299A.465 subdivision 6 expired on July 1, 2008.</span></p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On February 3, 2006, the Commissioner received a letter, dated same, from Bernard Johnson, Assistant Attorney General, on behalf of the Public Safety Officer Benefit Eligibility Panel. In his letter, Johnson asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Panel maintains. IPAD required additional information, which Mr. Johnson provided on both March 30 and April 13, 2006.</p> <p>A summary of the facts as Mr. Johnson provided them is as follows:</p> <p class="opinion_quote">The 2005 Minnesota Legislature created the [Panel] to review claims by injured peace officers and firefighters for continued health insurance benefits under Minn. Stat. section 299A.465, subd. 1. . . .</p> <p class="opinion_quote">The Panel determines whether a public safety officer has been approved to receive a duty-related disability pension and determines whether the officer's or firefighter's occupational duties or professional responsibility put the officer or firefighter at risk for the type of illness or injury actually sustained.</p> <p class="opinion_quote">The panel is subject to the provisions of the Open Meeting Law, Minn. Stat. ch. 13D. . . . </p> <p class="opinion_quote">In reviewing a public safety officer's request for benefits, the Panel is supplied medical data to substantiate the claimant's disability and injury, allowing the Panel to determine whether or not the public safety officer is eligible for benefits . . . . </p> <p class="opinion_quote">The medical data furnished to the [Panel] is provided by the applicant themselves[sic]. Medical data is not sent to the Panel by a hospital, clinic, doctor or any healthcare provider. The medical documentation is submitted by the Claimant and attached to their Benefit Eligibility Form . . . . </p> <hr /> <h2>Issues:</h2> <p>Based on Mr. Johnson's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Because Minnesota Statutes, section 299A.465, subdivision 6(a), classifies applications and supporting documents as private data, can those documents be released to claimant's employers, who would be responsible for the continuing health benefits of the claimant should the Panel determine that claimant is eligible for continued health benefits, to allow employers to present evidence either in support of or denial of the claim?</li> <li>Can the Panel close a portion of a meeting to discuss a claimant's medical data pursuant to Minnesota Statutes, section 13D.05, subdivision 2(a)(3)?</li> <li>Do the provisions of Minnesota Statutes, section 299A.465, subdivision 6(a) that classify an application and supporting documents as private data, prohibit the Panel from discussing the name of a claimant in an Open Meeting?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Because Minnesota Statutes, section 299A.465, subdivision 6(a), classifies applications and supporting documents as private data, can those documents be released to claimant's employers, who would be responsible for the continuing health benefits of the claimant should the Panel determine that claimant is eligible for continued health benefits, to allow employers to present evidence either in support of or denial of the claim?</em></p> <p>The Panel is created pursuant to Minnesota Statutes, section 299A.465, subdivision 7. It appears, therefore, to be a political subdivision and subject to the provisions of Chapter 13. (See section 13.02, subdivision 11.)</p> <p>Section 299A.465, subdivision 6(a), states that whenever a peace officer or firefighter has been approved to receive a duty-related disability pension, the officer or firefighter may apply to the Panel for a determination of whether or not s/he meets certain requirements. Subdivision 6(a) of section 299C.465 classifies the applications and supporting documents as private data. Pursuant to section 13.02, subdivision 12, private data are accessible to the data subject but not to members of the public. Minnesota Rules, section 1205.0400, further clarifies that private data also are accessible to individuals within the entity whose work assignments require access.</p> <p>Thus, the claimants' applications and supporting documents are accessible only to the data subjects, the Panel members, and Panel employees. A claimant's application and supporting documentation are available to his/her employer only if the claimant consents to the release of the data.</p> <h2>Issue 2:</h2> <p><em>Can the Panel close a portion of a meeting to discuss a claimant's medical data pursuant to Minnesota Statutes, section 13D.05, subdivision 2(a)(3)?</em></p> <p>As discussed in Issue 1, a claimant's application and supporting documents are private data pursuant to section 299C.465, subdivision 6(a). Based on Mr. Johnson's comments, the Commissioner assumes that any medical information a claimant submits is part of his/her application and supporting documentation. As such, any medical information is private data under section 299C.465, subdivision 6(a).</p> <p>Minnesota Statutes, section 13D.05, subdivision 1, states:</p> <p class="opinion_quote">(a) Except as provided in this chapter, meetings may not be closed to discuss data that are not public data.</p> <p class="opinion_quote">(b) Data that are not public may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body.</p> <p>Section 13D.05, subdivision 2, sets forth the situations in which a public body either is required or allowed to close a meeting. As there is no provision in section 13D.05 allowing or requiring the closing of a public meeting to discuss application data made private by section 299A.465, subdivision 6, the Panel may not close a meeting to discuss medical data that are part of a claimant's application.</p> <p>It is important to note that even though a meeting may not be closed to discuss application data, the data retain their classification as private data on individuals. However, any of the data that are part of a record of the meeting are public. (See section 13D.05, subdivision 1(c), which states, Data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public. )</p> <h2>Issue 3:</h2> <p><em>Do the provisions of Minnesota Statutes, section 299A.465, subdivision 6(a), that classify an application and supporting documents as private data, prohibit the Panel from discussing the name of a claimant in an Open Meeting?</em></p> <p>As stated above, pursuant to Section 13D.05, subdivision 1, public bodies may discuss private data in open meetings without liability or penalty, assuming the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body.</p> <p>In the situation currently before the Commissioner, if the Panel is uncomfortable discussing the claims in public, it seems the Panel could discuss each claim without identifying the individual applicants by assigning random numbers or letters as identifiers. Ultimately, however, the Panel and its legal advisors will have to determine what private data the Panel may discuss publicly to comply with Chapter 13D and will have to decide, as well, how best to conduct the work of the Panel effectively.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Johnson raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, section 299A.465, subdivision 6(a), applications and supporting documents are private data and cannot be released to a claimant's employer unless the claimant gives his/her consent for the release.</li> <li>The Panel may not close a portion of a meeting to discuss a claimant's medical data pursuant to Minnesota Statutes, section 13D.05, subdivision 2(a)(3).</li> <li>Pursuant to Minnesota Statutes, section 13D.05, subdivision 1, the Panel may discuss private data in an open meeting if the disclosure relates to a matter within the scope of the Panel's authority, and is reasonably necessary to conduct the business or agenda item before the Panel.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 17, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677252662872669452024-05-17T14:35:35Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267559" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-05-04T15:14:43ZDid the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), when the Council did not indicate any willingness to produce the document until January 31, 2006, and did not state any specific legal basis for refusing to provide the document until January 27, 2006? Did the Metropolitan Council comply with Minnesota Statutes, Chapter13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was Minnesota Statutes, section 13.37, subdivision 2? Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), where the Council's stated basis for refusing to provide the data was an Application for Temporary Classification of Data pursuant to Minnesota Statutes, section 13.06, subdivision 1, submitted on January 25, 2006? Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was a "gag" Order issued by the Bureau of Mediation Services mediator pursuant to Minnesota Statutes, section 179A.04, subdivision 3?May 4, 2006; Metropolitan Council36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On March 16, 2006, IPAD received a letter dated March 15, 2006, from John Borger, an attorney representing Star Tribune, the publisher of the <em>Star Tribune</em> newspaper. In his letter, Mr. Borger asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to data from the Metropolitan Council.</p> <p>IPAD, on behalf of the Commissioner, wrote to Peter Bell, Chair of the Council, in response to Mr. Borger's request. The purposes of this letter, dated March 23, 2006, were to inform him of Mr. Borger's request and to ask him to provide information or support for the Council's position. On April 14, 2006, IPAD received a response, dated same, from Nils Grossman, the Council's General Counsel.</p> <p>IPAD, on behalf of the Commissioner, also invited the Bureau of Mediation Services (BMS) to submit comments related to one of the issues Mr. Borger raised. On April 4, 2006, IPAD received comments, dated same, from James Cunningham, Commissioner of BMS.</p> <p>A summary of the facts as provided by Mr. Borger is as follows. In his opinion request, he wrote:</p> <p class="opinion_quote">In mid-January 2006, after more than six months of negotiations, the Metropolitan Council presented an offer for a three-year contract with bus drivers, train operators, and other transit union members. Star Tribune reporter Laurie Blake was unable to obtain comments about specific items in the contract proposal before the vote, which occurred between January 15 and January 16, 2006.</p> <p>Mr. Borger wrote, "On January 17 or 18, Ms. Blake requested a copy of the rejected contract."</p> <p>In an email dated January 18, 2006, Robert Gibbons of the Council responded: "The Met Council has deferred to the Bureau of Mediation Services on your request for the ATU [Amalgamated Transit Union] contract offer. As we moved toward the final offer, our bargaining sessions were conducted by BMS." Mr. Gibbons provided the name of the mediator and his telephone number.</p> <p>In his opinion request, Mr. Borger wrote, "On January 18 or 19, [Ms. Blake] asked the Council for a specific <u>legal</u> reason for its denying her access to the contract." (Emphasis provided.)</p> <p>In an email dated January 23, 2006, Mr. Gibbons responded: "Here is the reply I received from the Met Council: "We've decided not to release the details of our rejected ATU offer at this time. We're back in mediation and making progress, and the mediator has asked to [sic] two parties not to comment publicly on our talks."</p> <p>In his opinion request, Mr. Borger wrote, "Ms. Blake again asked for a <u>legal</u> reason for the denial of the access." (Emphasis provided.)</p> <p>In an email dated January 25, 2006, Mr. Gibbons replied, "I understand Steve Dornfeld, the Met Council's director of public affairs, will be calling you about the rejected contract offer."</p> <p>In his opinion request, Mr. Borger wrote, "Midday on January 25, at the newspaper's request and on its behalf, I telephoned [Mr. Grossman]. . .I left a voicemail. . . [and] I faxed him a letter. . . that day." Mr. Borger provided a copy of the letter in which he stated, "We expect the Council to provide immediate access to this specific document, or an immediate specific legal reason for denying access."</p> <p>Mr. Grossman responded in a letter dated January 27, 2006:</p> <p class="opinion_quote">. . .the Metropolitan Council's Responsible Authority does not intend to grant Ms. Blake's request, in the absence of a court order compelling production of the document requested.</p> <p class="opinion_quote">I believe the document in question falls within the classification of nonpublic data as described in Minn. Stat. section 13.37, subd. 2. . . <br /></p> <p class="opinion_quote">There are at least two other reasons to reject your client's request. The first is a "gag" Order issued by the BMS mediator pursuant to Minn. Stat. section 179A.04, subd. 3 (2005), a copy of which is attached. This written Order confirms the verbal order previously issued. . . <br /></p> <p class="opinion_quote">Secondly, the document requested is currently classified as "nonpublic data" by virtue of Minn. Stat. [13.06, subd. 1]. Because the risk of misinterpretation of Minn. Stat. section13.37, subd. 1(c), the Responsible Authority of the Metropolitan Council filed an <em>Application for Temporary Classification of Data Not on Individuals as Nonpublic or Protected Nonpublic Data</em>. To date the Commissioner [of Administration] has not acted on the application.</p> <p>(Emphasis provided.)</p> <p>In his opinion request, Mr. Borger wrote that the transit union approved the Metropolitan Council's revised contract proposal on January 30, 2006. He also provided a copy of the letter in which the Council withdrew its Application for Temporary Classification. Although the letter is not dated, Mr. Grossman faxed Mr. Borger a copy on January 31, 2006. In part, the letter states:</p> <p class="opinion_quote">As you may have heard, the Metropolitan Council and ATU Local 1005 reached an agreement which was approved by the ATU membership vote yesterday. Consequently, BMS Mediator Weisenburger has lifted his Order prohibiting disclosure of the data. Therefore, the issue of the subject application is moot</p> </div> <hr /> <h2>Issues:</h2> <p>Based on Mr. Borger's opinion request, the Commissioner agreed to address the following issues:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), when the Council did not indicate any willingness to produce the document until January 31, 2006, and did not state any specific legal basis for refusing to provide the document until January 27, 2006?</li> <li>Did the Metropolitan Council comply with Minnesota Statutes, Chapter13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was Minnesota Statutes, section 13.37, subdivision 2?</li> <li>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), where the Council's stated basis for refusing to provide the data was an Application for Temporary Classification of Data pursuant to Minnesota Statutes, section 13.06, subdivision 1, submitted on January 25, 2006?</li> <li>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was a gag Order issued by the Bureau of Mediation Services mediator pursuant to Minnesota Statutes, section 179A.04, subdivision 3?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), when the Council did not indicate any willingness to produce the document until January 31, 2006, and did not state any specific legal basis for refusing to provide the document until January 27, 2006?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have established that, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>Here, on January 17 or 18, 2006, the <em>Star Tribune's</em> reporter made a verbal request to Mr. Gibbons. It appears the reporter made a request for data, namely the proposed contract document, as opposed to having asked a question. The distinction is important because Chapter 13 applies only when individuals make requests for data that exist in some type of physical form. (See section 13.02, subdivision 7.)</p> <p>In his January 18, 2006, email to the reporter, Mr. Gibbons responded on behalf of the Council. In his email, Mr. Gibbons defers to BMS and suggests the reporter contact the mediator. In his January 23 email in response to the reporter's verbal request for a legal reason as to why she could not gain access to the proposed contract, Mr. Gibbons wrote that the Council would not be releasing the data. Mr. Gibbons did not provide a statutory basis for refusing to provide the data, which is required by section 13.03, subdivision 3. Therefore, the Council's response was not appropriate.</p> <p>The following note is in order. In his comments to the Commissioner, Mr. Grossman remarked that the <em>Star Tribune</em> reporter did not make her request to the responsible authority of the Council, as outlined in section 13.03, subdivision 3. Technically, this is correct. However, if the <em>Star Tribune</em> did not follow the Council's policy/procedures for requesting data, Mr. Gibbons should have advised the reporter to re-direct her request. Mr. Gibbons did not do so. Once the Council received the data request from the reporter, it had a reasonable time to respond. The Council could have used that time to evaluate thoroughly the request before providing its response to the <em>Star Tribune</em>. While Mr. Gibbons apparently was trying to be sensitive to the reporter's deadlines, it might have been more prudent to take the time allowed by Chapter 13 to prepare an appropriate response, i.e., to advise Ms. Blake that the Council had determined that the data are classified as not public, and to cite the statutory basis for that determination.</p> <h2>Issue 2:</h2> <p><em>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was Minnesota Statutes, section 13.37, subdivision 2?</em></p> <p>Before proceeding, the Commissioner notes the following. In the discussion of Issue 1, she concluded that the Council did not respond appropriately to the <em>Star Tribune's</em> data request because Mr. Gibbons, in his January 23, 2006, email, did not provide a statutory basis upon which the Council was denying access to the data. Later, Mr. Grossman offered three reasons as to why the data in the rejected contract should be protected. Mr. Borger asked the Commissioner to comment; her analysis follows below in Issues 2, 3, and 4.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Section 13.37, subdivision 2, classifies labor relations data as nonpublic (data not on individuals) and private (data on individuals). Subdivision 1(c) of section 13.37 defines labor relations data 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.</p> <p>Here, the Metropolitan Council, prior to the data request, had presented the data in the rejected contract during the collective bargaining process. Therefore, the data did not fit the definition of labor relations data and section 13.37, subdivision 2, was not an appropriate basis upon which to deny access to the contract.</p> <h2>Issue 3:</h2> <p><em>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), where the Council's stated basis for refusing to provide the data was an Application for Temporary Classification of Data pursuant to Minnesota Statutes, section 13.06, subdivision 1, submitted on January 25, 2006?</em></p> <p>Pursuant to section 13.06, government entities may apply to the Commissioner of Administration for permission to classify data or types of data as private or confidential (data on individuals) or nonpublic or protected nonpublic (data not on individuals). Pursuant to subdivision 1 of section 13.06, upon filing of the application with the Commissioner, the data shall be deemed to be classified as set forth in the application for a period of 45 days, or until the application is disapproved, rejected, or granted by the Commissioner, whichever is earlier.</p> <p>The Commissioner received the Council's request for a temporary classification on January 25, 2006.</p> <p>In his comments to the Commissioner, Mr. Grossman wrote:</p> <p class="opinion_quote">In this case, the Metropolitan Council was mediating, under the established statutory process, a dispute with a labor union where the mediator's verbal order, as well as the applicable rules, classified information disclosed to and received by the mediator as nonpublic. The Metropolitan Council also reviewed Minn. Stat. section 13.37 The Metropolitan Council was, however, concerned that a possible argument under Minn. Stat. section 13.37, subd. 1(c) could be construed as requiring this type of information to be public and therefore subject to disclosure. As a result, the Metropolitan Council was concerned about disclosing data that could later be found to be nonpublic, and in the process potentially undermining the chances for a successful mediation of the dispute with its potential to disrupt needed services to the public.</p> <p class="opinion_quote">Under these circumstances, the Metropolitan Council appropriately turned to the procedure for temporary classification</p> <p>Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified by statute, <em>temporary classification</em>, or federal law. If, as part of determining its response to a data request, a government entity concludes there is a need to request a temporary classification and submits an application, the data are protected once the Commissioner receives the application. This protection continues for 45 days, or until the Commissioner either disapproves, rejects, or grants the request, whichever is earlier. Thus, the fact that the Council had filed an application for a temporary classification <em>was an appropriate basis upon which to deny access to the rejected contract.</em></p> <p><em>The Commissioner adds the following note. By enacting section 13.06, the Legislature has provided entities with an option to protect certain data immediately if an entity has concerns about publicly releasing those data. This policy would be frustrated if the entity were prohibited from applying for a temporary classification once it had received a data request for the data in question.</em></p> <h2>Issue 4:</h2> <p><em>Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was a gag Order issued by the Bureau of Mediation Services mediator pursuant to Minnesota Statutes, section 179A.04, subdivision 3?</em></p> <p>In his comments to the Commissioner (of Administration), Commissioner Cunningham wrote:</p> <p class="opinion_quote">At the time of Ms. Blake's request for access to the proposed contract, the Metropolitan Council and the transit union had engaged the BMS to provide mediation services pursuant to Minn. Stat. section 179A.15 (2004). Accordingly, the Commissioner was allowed to take the most expedient steps to bring about a settlement, including assisting in negotiating and drafting an agreement. <em>Id.</em> Properly read, this statute provides the Commissioner with authority to instruct the participants in a matter he is mediating on the extent to which they can disclose their bargaining positions.</p> <p class="opinion_quote">The authority for the Metropolitan Council to comply with [the nondisclosure directive] is found in Minn. Stat. section 13.79, subd. 2(b) (2004). That subdivision provides that:</p> <p class="opinionquoteinquote">All data received or maintained by the commissioner or staff of the Bureau of Mediation Services during the course of providing mediation services to the parties to a labor dispute under the provisions of chapter 179 are classified as protected nonpublic data with regard to data not on individuals and as confidential data on individuals except to the extent that the commissioner of the Bureau of Mediation Services determines such data are necessary to fulfill the requirements of section 179A.16, or to identify the general nature of parties to a labor dispute.</p> <p class="opinion_quote">When the Metropolitan Council's proposed contract was presented to the mediator, it became subject to this provision and as such, classified as either protected nonpublic or confidential data. Minn. R. 5510.2905, subp. 1 thus governed the Metropolitan Council when it considered Ms. Blake's request.</p> <p>Minnesota Rules, section 5510.2905, subp. 1, is one of several sections in Minnesota Rules, Chapter 5510 that governs, among other things, the conduct of mediation. Section 5510.2905, subpart 1, states:</p> <p class="opinion_quote">Information disclosed to the commissioner or an authorized agent by any party during mediation, and all files, records, reports, documents, or other papers received or prepared by the commissioner during the performance of duties and responsibilities related to mediation of a dispute are classified as protected nonpublic data with regard to data not on individuals and as confidential data on individuals, except to the extent the commissioner determines to unclassify such data in the referral of a dispute to interest arbitration or to identify the general nature of or parties to a labor dispute.</p> <p>The Commissioner has the following comments. As prescribed in section 13.03, subdivision 1, government data are public unless otherwise classified by statute, temporary classification, or federal law. Accordingly, Minnesota Rules do not classify data, nor does a mediator's Order. Therefore, it was not appropriate for the Council to deny access to the data in the rejected contract offer based on either Minnesota Rules, section 5510.2905, or the mediator's Order.</p> <p>However, the Commissioner believes an argument can be made that the Council appropriately withheld the data in the rejected contract pursuant to section 13.79. In his comments to the Commissioner, Mr. Grossman wrote:</p> <p class="opinion_quote">In deference to the urgency of the Star Tribune's request, the Metropolitan Council quickly prepared a response setting forth the bases for its classification of the requested data as nonpublic data. The combined pressure of a time constraint imposed by the ongoing labor negotiations coupled with the need to promptly respond to the Star Tribune's data request, resulted in no reference to Minn. Stat. section 13.79, which specifically covers the type of data requested and is dispositive of the issue in this matter.</p> <p class="opinion_quote">At the time the Star Tribune requested the rejected contract proposal on January 17 or 18, 2006, the requested data fell squarely within the definition of mediation data as set forth in Minn. Stat. section 13.79, subd. 2(b). The Metropolitan Council and the Transit Union submitted this labor dispute to the Bureau of Mediation Services and were working with their appointed mediator.</p> <p>Section 13.79, subdivision 2(b), appears to classify only those data maintained by the Bureau of Mediation Services. Such a reading, however, creates an absurd result, which, pursuant to Minnesota Statutes, section 645.17, is not to be presumed. If data relating to a mediation conducted by BMS are protected at BMS but not protected in the agency that created the data, the purpose in classifying the data at BMS is frustrated.</p> <p>The Commissioner, however, strongly encourages interested parties to take this issue to the Legislature to ensure that the valid policy reasons for protecting data during mediation are considered and appropriate data classifications adopted. In addition, the Council may wish again to seek a temporary classification.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>The Metropolitan Council did not comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006).</li> <li>The Metropolitan Council did not comply with Chapter 13 in denying access to a request for a copy of the rejected contract based on Minnesota Statutes, section 13.37, subdivision 2.</li> <li>The Metropolitan Council did comply with Chapter 13 in denying access to a request for a copy of the rejected contract based on the filing of an application for a temporary classification pursuant to Minnesota Statutes, section 13.06.</li> <li>The Metropolitan Council did not comply with Chapter 13 in denying access to a request for a copy of the rejected contract based on a gag Order issued by the Bureau of Mediation Services mediator pursuant to Minnesota Statutes, section 179A.04, subdivision 3.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 4, 2006</p> <hr /></td> </tr> </tbody> </table> </div>2675592664642665012665022665032665042022-05-19T19:44:22Z266258266259266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267469" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-04-28T15:14:43ZDid the Minnesota Department of Corrections comply with Minnesota Statutes, Chapter 13, regarding a January 22, 2006, request for data?April 28, 2006; Minnesota Department of Corrections36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On March 16, 2006, IPAD received a letter dated March 14, 2006, from Stephen Danforth. In his letter, Mr. Danforth asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Minnesota Department of Corrections.</p> <p>IPAD, on behalf of the Commissioner, wrote to Joan Fabian, Commissioner of the Department, in response to Mr. Danforth's request. The purposes of this letter, dated March 21, 2006, were to inform her of Mr. Danforth's request and to ask her to provide information or support for the Department's position. On April 14, 2006, IPAD received a response, dated April 12, 2006, from Randy Hartnett, Policy and Legal Services, Data Compliance Official.</p> <p>A summary of the facts as Mr. Danforth provided them is as follows. In a letter dated January 22, 2006, he wrote to the Department and asked for access to various types of data. Mr. Danforth wrote, In the event that you do have possession of, or control of, or access to any respective data item requested herein, please indicate in your response the copying cost rate, and the total cost, to provide me a single, full copy of the data as described in that specific item.</p> <p>In his opinion request, Mr. Danforth wrote, To date of this letter, I have not received any response from [the Department] in response to that data request letter.</p> </div> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Danforth's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Minnesota Department of Corrections comply with Minnesota Statutes, Chapter 13, regarding a January 22, 2006, request for data?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have established that, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>In his comments to the Commissioner, Mr. Hartnett noted that Mr. Danforth had made at least one previous data request to the Department:</p> <p class="opinion_quote">Mr. Danforth's requests for data are complex and involve a number of data elements, not all of which are entirely clear. They related to the MSOP [Minnesota Sex Offender Program], which is a clinical program of the DHS housed at MCF [Minnesota Correctional Facility] - Moose Lake.</p> <p class="opinion_quote">the request was reviewed by the chief counsel for the DOC to determine whether it fell under Minn. Stat. section 13.39 as civil litigation data. While the conclusion was that the data probably did not, this added additional time to the process.</p> <p>Mr. Hartnett then went though the various elements of Mr. Danforth's January 22, 2006, data request, stating that certain data can be found in specific Department policies, certain data are maintained by DHS, certain data do not exist, and that in a couple of instances, it is not clear what Mr. Danforth is asking for.</p> <p>The Commissioner has the following comments. In his January 22, 2006, data request, Mr. Danforth asked for access to certain data - whether he was asking to inspect or to obtain copies is not entirely clear. As of seven weeks later, the date of his opinion request, he had not received a response from the Department. In the Commissioner's opinion, this was not appropriate or timely.</p> <p>Assuming the Department has not yet responded to Mr. Danforth's January 22, 2006, request, it should do so promptly, first by clarifying whether he is asking to inspect the data or have copies. The Department should locate the specific policies that are responsive to the request and provide them either for inspection or in the form of copies. If the Department is not clear about the data Mr. Danforth is seeking, it should seek clarification. In addition, the Department needs to advise Mr. Danforth what data it does not maintain.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Danforth raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Minnesota Department of Corrections did not comply with Minnesota Statutes, Chapter 13, regarding a January 22, 2006, request for data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 28, 2006</p> <hr /></td> </tr> </tbody> </table> </div>2674692663562663442022-01-19T19:22:21Z266258266781266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267698" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-04-12T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that Anoka County maintains: data related to the registration of legal non-licensed child care providers?April 12, 2006; Anoka County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On February 27, 2006, IPAD received a letter dated February 24, 2006, from Jerry Soma, Division Manager of Anoka County Human Services. In his letter, Mr. Soma asked the Commissioner to issue an advisory opinion regarding the classification of certain data the County maintains.</p> <p>In a letter dated March 1, 2006, IPAD invited the Minnesota Department of Human Services (DHS) to submit comments. On March 24, 2006, IPAD received comments from Commissioner Kevin Goodno.</p> <p>A summary of the facts as provided by Mr. Soma is as follows. In a letter dated February 9, 2006, a labor union requested access to the following data:</p> <p class="opinion_quote">A list of all legally non-licensed child care providers participating in or receiving payment from the state's child care assistance programs, specifically the Minnesota Family Investment Program and Basic Sliding Fee Child Care Program in Anoka County, who have been paid since January 1, 2006. Also, if there are legally non-licensed child care providers in Anoka County who do not receive payment from the state's child care assistance programs, please enclose a separate list of those providers.</p> <p class="opinion_quote">For each childcare provider on the list, please provide the following information:</p> <p class="opinion_quote">1. Provider Name/Facility Name <br /> 2. Street Address <br /> 3. City <br /> 4. State <br /> 5. Zip Code <br /> 6. Telephone Number, if available</p> <p>In his opinion request, Mr. Soma wrote, In conclusion, is data collected by the welfare system in connection with the registration of legal non-licensed child care providers properly classified as private data on individuals or as public data on individuals?</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Soma's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that Anoka County maintains: data related to the registration of legal non-licensed child care providers?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Minnesota Statutes, section 119B.02, subdivision 6, states, Data collected, maintained, used, or disseminated by the welfare system pertaining to persons selected as legal nonlicensed child care providers by families receiving child care assistance shall be treated as licensing data as provided in section 13.46, subdivision 4.</p> <p>Section 13.46, subdivision 4, provides various classifications for licensing data.</p> <p>In his comments to the Commissioner, Commissioner Goodno noted that the state and county human services agencies maintain data about some legal non-licensed child care providers; specifically those who provide services to a family receiving government-subsidized assistance. (See Minnesota Statutes, section 119B.125 and Minnesota Rules, section 3400.0010, subpart 38.) Commissioner Goodno wrote:</p> <p class="opinion_quote">The provider must submit an acknowledgement to the county which, in turn, determines whether the provider can be authorized to receive payment from the Child Care Assistance Program (CCAP).</p> <p class="opinion_quote"><strong>The only reason that DHS or a county human services agency would have data about a legal nonlicensed child care provider is because that provider is or has been providing services to a family receiving child care assistance.</strong> Neither the State nor the county collect or maintain the names of legal nonlicensed child care providers who are providing services to families that are not receiving child care assistance.</p> <p class="opinion_quote">In 2004, the Minnesota Legislature attempted to clarify the status of government data about legal nonlicensed child care providers. Pursuant to federal law, the state agency overseeing child care assistance is required [sic] maintain a record of substantiated parental complaints against providers participating in the program, and to make such information available to the public. To make it clear in state law that such data is public data, the Legislature amended Minnesota Statute 199B.02, subdivision 6, to read: data collected, maintained, used, or disseminated by the welfare system pertaining to persons selected as legal nonlicensed child care providers by families receiving child care assistance shall be treated <em>as licensing data as provided in [section 13.46, subd. 4]</em>. [Emphasis provided.]</p> <p>The union asked for the names, addresses, and telephone numbers of all legal non-licensed childcare providers who have been paid via CCAP since January 1, 2006. As stated above, data about legal non-licensed providers are classified by section 13.46, subdivision 4. As the Commissioner opined in Advisory Opinion 01-091, the operation of section 13.46, subdivision 4, is such that all licensing data are presumed private unless there is language specifically stating that certain of the data are public. Nowhere in section 13.46, subdivision 4, does it state that the date on which a provider receives a CCAP payment is public and the Commissioner is not aware of any federal law making such data public. Therefore, the data as requested by the union are not public.</p> <p>That said, the Commissioner notes that if the union had asked <em>only</em> for the names, addresses, and telephone numbers of all legal non-licensed providers, the County would have been required to release those data pursuant to section 13.46, subdivision 4. The County must look to section 13.46, subdivision 4, to determine the classification of other data it maintains about legal non-licensed providers.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Soma raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, data maintained by Anoka County about legal non-licensed childcare providers are classified pursuant to section 13.46, subdivision 4. Because the names, addresses, and telephone numbers of providers who have been paid since January 1, 2006, are not included in the list of licensing data that are public, they are private.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 12, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676982667432663532022-01-19T19:22:21Z266258266283266284266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267613" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-04-07T15:14:43ZDid the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005? Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005? Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005?April 7, 2006; Brunswick Town Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On March 1, 2006, IPAD received a letter, dated February 27, 2006, from Ronald L. Peterson. In his letter, Mr. Peterson asked the Commissioner to issue an advisory opinion regarding closed meetings held by the Brunswick Town Board (the Board) on August 26 and 29, 2005. Mr. Peterson submitted the $200.00 fee required by section 13.072.</p> <p>On March 3, 2006, IPAD wrote to Rick Kawalek, chair of the Board. In its letter, IPAD informed Mr. Kawalek of Mr. Peterson's request and gave the Board, or any of its members, an opportunity to explain the Board's position. The Board presented its position in a letter from its attorney, Kevin A. Hofstad, dated April 3, 2006.</p> <p>A summary of the facts presented by Mr. Peterson is as follows.</p> <p>On August 26, 2005, the members of the Board met at Mr. Hofstad's offices. According to a January 25, 2006, written statement by the town clerk, Gladys Nelson, Mr. Hofstad called the meeting, no notice of a special meeting was posted and the meeting was held at Mr. Hofstad's office. Mr. Hofstad's office is located in Pine City, Minnesota. According to a February 12, 2006, written statement from Board Supervisor Loren Barnick, the lawyer's office is located more than 15 miles outside the territorial limits of Brunswick Township. Supervisor Barnick, who was present at the meeting, also stated that there was no declaration during the August 26th meeting giving the reason why the meeting was closed or the statutory basis for its closure.</p> <p>Another meeting of the Board was held on August 29, 2005. Clerk Nelson's January 25th statement indicates that this was not a regular meeting of the Board and that no notice was posted. The August 29th meeting was held at the Town Hall. Supervisor Barnick was also present for the August 29th meeting and his written statement provides that no declaration was made giving the reason why the meeting was closed or the statutory basis for its closure.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. Peterson's request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005?</li> <li>Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005?</li> <li>Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Before turning to the issues raised by Mr. Peterson, it is necessary to establish that the Board is subject to the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. According to Minnesota Statutes, section 13D.01, subdivision 1(b)(5), the governing body of a town is subject to the requirements of the OML. Therefore, the Board is subject to Chapter 13D.</p> <p>There are several purposes for the OML. The Minnesota Supreme Court stated in <em>Prior Lake American v. Mader</em>, 642 N.W.2d 729 (Minn. 2002) that:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. <em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em>, 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W.2d 294, 297 (Minn. 1993); <em>see St. Cloud Newspapers</em>, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).</p> <p><em>Prior Lake American</em> at 735. With this background, the next step is to review the issues presented by Mr. Peterson.</p> <h2>Issue 1:</h2> <p><em>Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005?</em></p> <p>Public bodies, such as the Board, are generally required to hold meetings in public. Minnesota Statutes, section 13D.01. The Minnesota Supreme Court has interpreted this requirement to mean that meetings must be held within the borders of the public body. <em>Quast v. Knutson</em>, 150 N.W.2d 199, 200 (Minn. 1967).</p> <p>The information provided by Mr. Peterson states that the August 26, 2005, meeting was held in Pine City, Minnesota that is located outside the borders of Brunswick Township. Mr. Hofstad indicated that the meeting was held at his office for two reasons: to save attorney expense based on his travel to the town hall and because of his tight time schedule. The OML does not provide bases on which a public body can be excused from holding a meeting within the borders of the public body. Therefore, the August 26, 2005, meeting was not in compliance with the OML.</p> <h2>Issue 2:</h2> <p><em>Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005?</em></p> <p>According to the information provided by Mr. Peterson, the meetings on August 26 and 29, 2005, were special meetings of the Board. Therefore, the notice requirements are found in section 13D.04, subdivision 2(a). That provision states:</p> <p class="opinion_quote">For a special meeting, except an emergency meeting or a special meeting for which a notice requirement is otherwise expressly established by statute, the public body shall post written notice of the date, time, place, and purpose of the meeting on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room.</p> <p>The written statement by the Town Clerk clearly states that no notice was provided before either meeting. As there was no posting, either on the Town's principal bulletin board or on the door of the usual meeting room, the notice requirements of section 13D.04, subdivision 2(a) were not met and the Board was not in compliance with the OML.</p> <h2>Issue 3:</h2> <p><em>Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005?</em></p> <p>The meetings on August 26 and 29 were closed to the public. Before a meeting can be closed, section 13D.01, subdivision 3 requires that there be a statement about the closure on the record. Specifically, that subdivision states:</p> <p class="opinion_quote">Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.</p> <p>The statement by the Supervisor Barnick, who attended both meetings, indicates that no statement was made before either meeting was closed. Therefore, the Board was not in compliance with section 13D.01, subdivision 3.</p> <hr /> <h2>Opinion:</h2> Based on the facts and information provided, my opinion on the issues that Mr. Peterson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The members of the Brunswick Town Board did not comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005.</li> <li>The members of the Brunswick Town Board did not comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005.</li> <li>The members of the Brunswick Town Board did not comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 7, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676132662892662882662902022-04-20T22:14:37Z266258266259266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266955" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-03-28T16:14:43ZDid Sherburne County comply with Minnesota Statutes, Chapter 13, in denying access to a request to inspect, remotely, certain data the County maintains?March 28, 2006; Sherburne County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 6, 2006, IPAD received a letter dated same, from Tony Pistilli. In his letter, Mr. Pistilli asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from Sherburne County.</p> <p>IPAD, on behalf of the Commissioner, wrote to Brian Bensen, Administrator of the County, in response to Mr. Pistilli's request. The purposes of this letter, dated February 10, 2006, were to inform him of Mr. Pistilli's request and to ask him to provide information or support for the County's position. On February 21, 2006, IPAD received a response, dated same, from Todd Schoffelman, Assistant Sherburne County Attorney.</p> <p>A summary of the facts as Mr. Pistilli provided them is as follows. In a January 5, 2006, letter to the County he wrote:</p> <p class="opinion_quote">Can I gain access electronically and inspect, remotely from my computer, not a copy, without fee, information such as dwelling size, property sketch, number of finished rooms in the basement and main level, etc., that is located on the subscription based Sherburne County GIS web site?</p> <p class="opinion_quote">I am aware that the data that I am requesting is also contained within the County but outside of the GIS web site.</p> <p class="opinion_quote">I have already inspected certain data available on the Sherburne County public web site and some of the data is available in the subscription -based portion of the County web site.</p> <p class="opinion_quote">I am looking specifically for the additional data not available on the Sherburne County web site without subscription.</p> <p>The County responded on January 25, 2006, The information you seek is available over the internet, by subscription. You can also inspect the same information, at no cost, at the Sherburne County Assessor's Office. However, if you wish to have copies of the data, you will need to pay the applicable copying charge.</p> <p>In his opinion request, Mr. Pistilli wrote, The information I was requesting is collected and assembled using public tax dollars. Some of this information is available to the public via the Internet. The other public information is being restricted from public viewing on the Internet and is only available for viewing with a subscription.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Pistillit's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did Sherburne County comply with Minnesota Statutes, Chapter 13, in denying access to a request to inspect, remotely, certain data the County maintains?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 3(b), states, in part, A government entity may charge a fee for remote access to data where either the data or the access is enhanced at the request of the person seeking access.</p> <p>In his comments to the Commissioner, Mr. Schoeffelman argued that, here, both the access and the data are enhanced:</p> <p class="opinion_quote">Sherburne County's paid subscribers have access to the following enhanced remote access and enhanced data:</p> <p class="opinion_quote">1. The ability to search property records by last name of property owner.</p> <p class="opinion_quote">2. The ability to do a comparable search of every parcel in Sherburne County by the following parameters:</p> </dd> <dd> <p class="opinion_quote">a. Year Built <br /> b. Total Square Footage <br /> c. Construction Quality <br /> d. Bedrooms <br /> e. Sale Price <br /> f. Sale Date <br /> g. Assessed Value <br /> h. Style of dwelling</p> <p class="opinion_quote">3. The ability to access property ownership information.</p> <p class="opinion_quote">4. The ability to access per parcel dwelling details, such as square feet of dwelling, number of bedrooms and bathrooms and the year the dwelling was built.</p> <p class="opinion_quote">5. The ability to review any available sketches of a dwelling.</p> <p class="opinion_quote">6. The ability to review sales history of a dwelling.</p> <p class="opinion_quote">7. The ability to access the above mentioned data 24 hours a day and 365 days a year.</p> <p class="opinion_quote">8. The unlimited ability to remotely download, print and/or copy the above mentioned enhanced data 24 hours a day and 365 days a year.</p> <p class="opinion_quote">All of these enhancements assist the subscriber in searching and accessing public data.</p> <p class="opinion_quote">Of particular note, is searching for comparable properties. This remote enhancement and data enhancement allows for near instantaneous and simultaneous search of all the public data maintained by the Assessor's Office according to subscriber chosen parameters and manipulation.</p> <p class="opinion_quote">The same search conducted in person at the Assessor's Office would either require the manual searching of numerous public documents or using the public access computer. Both of these searches would have to occur during business hours. The individual would also need to pay any applicable copying fees.</p> <p class="opinion_quote">Unfortunately, if Sherburne County can not use this modest reasonable fee to help offset the cost of maintaining this remote access, Sherburne County will have to cancel its contract with the outside vendor that provides this service and cease offering any remote access to its public data. The fee structure in Minn. Stat. 13.03 Subd (3) (b), recognizes this fiscal limitation of government and provides for Sherburne County's reasonable fee for access to the enhanced remote access to data and enhanced data. Consequently, Sherburne County's fee is legal.</p> <p>Based on Mr. Schoffelman's comments, it appears to the Commissioner that the subscription service available from Sherburne County does offer data and access that have been enhanced. According to Mr. Schoffelman, the County has at least 32 subscribers. Thus, based on the language in section 13.03, subdivision 3(b), the County may charge a fee.</p> <p>Mr. Pistilli argues that he should be able to gain access remotely, without charge or enhancement, to the same types of data that are available to individuals who pay the subscription fee. However, nothing in Chapter 13 requires government entities to provide inspection of public data on a remote basis. Clearly, though, pursuant to section 13.03, subdivision 3(a), Mr. Pistilli is entitled to inspect and/or obtain copies of any and all public data in the Assessor's Office at reasonable times and places set by the County.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Pistilli raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Sherburne County complied with Minnesota Statutes, Chapter 13, in denying access to a request to inspect, remotely, certain data the County maintains.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 28, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2669552663202022-01-19T19:22:20Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266892" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-03-23T16:14:43ZDid the City of North Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for the names and addresses of three individuals, each of whom made a complaint against a City police officer?March 23, 2006; City of North Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On February 6, 2006, IPAD received a letter dated February 1, 2006, from Rose Kubiatowicz. In her letter, Ms. Kubiatowicz asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the City of North Saint Paul.</p> <p>IPAD, on behalf of the Commissioner, wrote to Wally Wysopal, Manager of the City, in response to Ms. Kubiatowicz's request. The purposes of this letter, dated February 8, 2006, were to inform him of Ms. Kubiatowicz's request and to ask him to provide information or support for the City's position. On February 22, 2006, IPAD received a response, dated February 17, 2006, from Thomas Lauth, the City's Police Chief.</p> <p>A summary of the facts as provided by Ms. Kubiatowicz is as follows. In a letter dated December 30, 2005, she wrote to the City and asked for certain data about a City employee.</p> <p>In a letter dated January 17, 2006, Chief Lauth provided some of the requested data.</p> <p>In a January 25, 2006, letter, Ms. Kubiatowicz wrote:</p> <p class="opinion_quote">On my [December 30, 2005] request I asked for the names and addresses of any and all Complainants. The [City's response] did not give me names and addresses, but rather listed three instances where the complainant was described as an individual. I am hereby requesting the names and addresses of the three individuals who have made complaints.</p> <p>In a January 27, 2006, letter, Chief Lauth responded:</p> <p class="opinion_quote">I am unable to honor your request [the employee] has disputed the disposition as is afforded him by the Collective Bargaining Agreement and, as such, the information you have requested is not public data until a final disposition. Please refer to Minnesota State Statute 13.43, Subdivision 2 (8) (b).</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Kubiatowicz's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of North Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for the names and addresses of three individuals, each of whom made a complaint against a City police officer?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion: <br /></h2> <p>Government data are public unless otherwise classified. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>In his comments to the Commissioner, Chief Lauth wrote:</p> <p class="opinion_quote">Some of the information requested by Rose Kubiatowicz is not public data (Private) at this time. Specifically, the information she has requested is in regards to an employee who is covered by a collective bargaining agreement (CBA). The employee has disputed the disposition as is afforded by the CBA. The employee and the Union Representative have filed grievances regarding the three (3) dispositions, in accordance with the labor agreement.</p> <p class="opinion_quote">Pending final resolution of the grievances will determine whether the data requested is public or private.</p> <p>In his January 27, 2006, response to Ms. Kubiatowicz, Chief Lauth cited section 13.43, subdivision 2(8)(b), as the basis upon which the City was denying access to the data. As there is no section 13.43, subdivision 2(8)(b), the Commissioner assumes Chief Lauth is referring to section 13.43, subdivision 2(b). This statutory provision prescribes the conditions that must exist for a final disposition to have occurred. Once there is a final disposition, a government entity must make public certain data about an employee against whom a complaint has been lodged. What Chief Lauth seems to be asserting is that, because the employee against whom complaints have been lodged has grieved the City's disciplinary action, limited data about the matter are public at this time.</p> <p>Ms. Kubiatowicz has asked for identifying information about the individuals who made complaints against the City employee, not for data about the employee against whom the complaints were lodged. It appears Chief Lauth has taken the position that data identifying the complainants are data about the employee against whom the complaints have been lodged. The Commissioner disagrees. The names and addresses about the complainants are data about the complainants. If the complainants are members of the public, the data about them are public pursuant to section 13.03, subdivision 1. (See <em>Demers v. City of Minneapolis</em>, 468 N.W.2d 71 (Minn. 1991) and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267552" title="96-002" target="_blank">Advisory Opinion 96-002</a>.) If the complainants are employees, their names and addresses are private data pursuant to section 13.43, subdivision 4.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Kubiatowicz raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"><br /> If the complainants are members of the public, the City of North Saint Paul did not comply with Minnesota Statutes, Chapter 13, in responding to a request for their names and addresses. If the complainants are employees, the City appropriately withheld their names and addresses; however, the basis for denying access is section 13.43, subdivision 4, not section 13.43, subdivision 2(b).</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 23, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2668922663432022-01-19T19:22:20Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267179" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-03-17T16:14:43ZDid the Minnesota Historical Society respond appropriately to a March 14, 2005, request for access to data?March 17, 2006; Minnesota Historical Society36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong> <br /></p> <h2>Facts and Procedural History: <br /></h2> <p>On January 27, 2006, IPAD received a letter dated January 26, 2006, from Bruce White. In his letter, Mr. White asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Minnesota Historical Society.</p> <p>IPAD, on behalf of the Commissioner, wrote to Nina Archabal, Director of the Society, in response to Mr. White's request. The purposes of this letter, dated January 30, 2006, were to inform her of Mr. White's request and to ask her to provide information or support for the Society's position. On February 24, 2006, IPAD received a response, dated same, from Shari Jerde, an attorney representing the Society.</p> <p>A summary of the facts as provided by Mr. White is as follows. In a letter dated March 14, 2005, he wrote to Ms. Archabal and asked to inspect certain data, including all versions, draft or final, of a report relating to an archaeological survey. Over the next several months, Mr. White and the Society corresponded regarding the data request.</p> <p>In his opinion request, Mr. White wrote:</p> <p class="opinion_quote">There are two issues involved in this case. One relates to the question of whether the [Society] is subject in any way to [Minnesota Statutes, Chapter 13]. The other concerns the question or [sic] whether the [Society] responded properly in dealing with requests for the ... archaeological report and related documents.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. White's opinion request, the Commissioner agreed to address the following issue: <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Minnesota Historical Society respond appropriately to a March 14, 2005, request for access to data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Minnesota Statutes, Chapter 13, regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities. (See section 13.01, subdivision 3.)</p> <p>A government entity is defined as a state agency, political subdivision, or a statewide system. (See section 13.02, subdivision 7a.)</p> <p>A state agency is defined as the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state. (See section 13.02, subdivision 17.)</p> <p>In her comments to the Commissioner, Ms. Jerde argues that the Society is not subject to Chapter 13:</p> <p><em>The society is neither a political subdivision nor a statewide system as defined by [Chapter 13]and therefore the only way Chapter 13 applies to the Society is if it can properly be considered a state agency under [Chapter 13].</em></p> <p>Analysis of the Minnesota Statutes, as well as historic treatment of the Society, demonstrates that the Society is not a state agency for the purposes of Chapter 13.</p> <p>Ms. Jerde cites statutory provisions in support of her argument, including Minnesota Statutes, section 138.17, dealing with government records. (Minnesota Statutes, Chapter 138, relates, among other things, to historical societies and archives.) She asserts that section 138.17 demonstrates a clear legislative intent that government records transferred to the Society be given different treatment than that provided by Chapter 13. Pursuant to section 138.17, subdivision 1a, employees of the archives division of the Society are granted access to all government records and are explicitly made subject to the penalty provisions of Chapters 13 and 270B. Ms. Jerde wrote, If the Society's archives' employees were state employees, the penalty provisions of Chapter 13 would applyand an explicit statement to that effect would be unnecessary.</p> <p>Further, Ms. Jerde wrote:</p> <p><em>Specifically, section 138.17 subd. 1a provides that the Society's archives' employees must be given access to government records that a government entity lists on a records retention schedule or disposition application for the purpose of determining the historical or other continuing value of the records, regardless of the records' classification pursuant to Chapter 13 or 270B. (emphasis added).If Chapter 13 were made applicable to the Society, it would create confusion and conflict with these provisions.</em></p> <p><em>Significantly, [subdivision 1a was] added as a result of discussions during the 1982 legislative session in which the Society took the position that it needed special statutory treatment with respect to transferred government records because it was not a state agency subject to Chapter 13. It is also significant that this section regarding government records explicitly exempts the Society from the provisions of the state records management statute. See Minn. Stat. section 138.17 subd. 3.</em></p> <p>Ms. Jerde also refers to language in Minnesota Statutes, sections 138.081 and 138.25 as further support for the position that the Society is not a state agency for purposes of Chapter 13. In these provisions, the Legislature designates the Society or its executive council as a state agency for a very limited purpose, such as administering the national historic records act (see section 138.25). Ms. Jerde wrote:</p> <p><em>The legislature's designation of the Society or its executive council to act as a state agency for specific, limited purposes demonstrates that the Society is not generally considered a state agency. If it were, language designating it as such for these specific purposes would be unnecessary.</em></p> <p>Ms. Jerde also notes language in Minnesota Statutes, section 138.01, subdivision 2, which provides that Society employees are to be paid a salary comparable to the salaries paid to state employees in the classified state civil service. She wrote, This language would similarly be unnecessary if the Society was a state agency, as its employees would be state employees.</p> <p>Ms. Jerde cites several other provisions in Minnesota Statutes to support her contention that the Society is not a state agency for purposes of Chapter 13. Her list includes Minnesota Statutes, section 15.01, relating generally to stage agencies, which explicitly excludes the Society from the definition of a state agency; and Minnesota Statutes, section 3.3005, relating to federal monies and expenditure reviews, which explicitly excludes the Society from the definition of state agency.</p> <p>Ms. Jerde added:</p> <p><em>Minnesota Statute section 352.01, subds. 1, 2, 2a make clear that for the purposes of th[e Minnesota State Retirement System] a 'state employee' means any employee or officer in the classified and unclassified service of the state, [as well as] the special classes of persons listed in subdivision 2a, [which includes] employees of the Minnesota historical society. Similarly, '[f]or the purposes of workers' compensation as provided by this chapter, the Minnesota historical society is a state department and such chapter applies to its employees the same as it applies to any department of the state government. If the Society were a state agency, the Minnesota Legislature would not have needed to require specific language referencing and including the Society in these chapters.</em></p> <p>Finally, Ms. Jerde references an Attorney General Opinion issued on May 26, 1944:</p> <p><em>the Minnesota Attorney General was asked to determine, among other things, whether the Society was subject to the Reorganization Act of 1939.The Attorney General concluded that:</em></p> <p><em>The Society as organized under the 1849 act was an ordinary private corporation.However, it appears to us that the effect of the 1856 act and the 1875 amendment was to place the Society in that class of private corporations characterized as quasi public corporations or corporations affected with a public interest. </em></p> <p><em>the Attorney General concluded the Act as amended did not apply to the Society.</em></p> <p><em>The Society today is still treated like a private corporation. For example, for IRS purposes, the Society is a 501(c)(3) organization and, as such, it is required to annually file a federal tax statementIf it were a state agency, it would not be required to file this form.</em></p> <p>In conclusion, Ms. Jerde stated:</p> <p><em>The Minnesota Legislature knows when and how to specifically include non-governmental entities within the definition of a state agency or government entity for various purposes set out in Minnesota Statutes. Indeed, the legislature made such a determination with respect to the University of Minnesota when it decided to specifically include the University in the definition of state agency for purposes of Chapter 13. See Minn. Stat. section13.02, subd. 17. If the legislature had intended Chapter 13 to apply to the Society, it most likely would have similarly included the Society in the definition of state agency. </em></p> <p><em>Moreover, in addition to the University of Minnesota, the Minnesota Legislature has determined that other entities that are not traditional government entities ought nonetheless to be subject to the requirements of Chapter 13 and it has therefore included specific language to that effect in the chapters governing those entities.Significantly, nowhere in Chapter 138 does the legislature indicate an intent that the Society be subject to the requirements of [Chapter 13].</em></p> <p><em>The Society was therefore under no duty to respond to Mr. White's request pursuant to Chapter 13 and its response, which was made pursuant to its own policy governing disclosure of data, was appropriate.</em></p> <p>As the Commissioner is unaware of any statutory provision subjecting the Society to Chapter 13 or requiring compliance with Chapter 13 as a condition of accepting public funds, her opinion is that the Society is not a state agency and is not subject to Chapter 13.</p> <p>A final note is in order. If the Society enters into a contract with a government entity to perform functions on behalf of the entity, data related to the contract would be subject to the requirements of Chapter 13. (See section 13.05, subdivision 11.)</p> <hr /> <h2>Opinion:</h2> <p><br /> Based on the facts and information provided, my opinion on the issue that Mr. White raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Minnesota Historical Society is not subject to the requirements of Chapter 13. Therefore, the Society was not required to comply with Chapter 13 in responding to a March 14, 2005, request for access to data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 17, 2006</p> <hr /></td> </tr> </tbody> </table> </div>2671792669162022-01-19T19:22:20Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267578" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-03-08T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Independent School District 191, Burnsville-Eagan-Savage: data in five memoranda relating to a former District employee?March 8, 2006; School District 191 (Burnsville-Eagan-Savage)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 27, 2005, IPAD received a letter dated December 21, 2005, from Maggie Wallner. In her letter, Ms. Wallner asked the Commissioner to issue an advisory opinion regarding the classification of certain data about a former employee that Independent School District 191, Burnsville-Eagan-Savage, maintains. IPAD requested additional information, which Ms. Wallner provided on January 25, 2006.</p> <p>In a letter dated January 31, 2006, IPAD, on behalf of the Commissioner, wrote to the data subject (the former employee) and invited him/her to provide comments. In a letter dated February 8, 2006, the employee's attorney, Christina Clark, replied.</p> <p>A summary of the facts as provided by Ms. Wallner is as follows. In her opinion request, she wrote:</p> <p class="opinion_quote">The [District] has received a request from the media for the personnel file of a former employee. The [District] hereby requests an opinion regarding the classification of the enclosed documents.</p> <p class="opinion_quote">The employee did not grieve any of the foregoing documents and the time to grieve has expired.</p> <p>Ms. Wallner attached a copy of the collective bargaining agreement between the District and the Burnsville Education Association, for years 2003 - 2005.</p> <p>The additional information Ms. Wallner provided on January 25, 2006, is as follows:</p> <p class="opinion_quote">1. [The employee] resigned pursuant to a Separation Agreement. All investigations regarding [the employee] were concluded at the time of [his/her] resignation.</p> <p class="opinion_quote">2. [The employee] did not file grievances regarding any of the documents submitted to the [Department of Administration] and the time to grieve has expired.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Ms. Wallner's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data maintained by Independent School District 191, Burnsville-Eagan-Savage: data in five memoranda relating to a former District employee?</td> </tr> </tbody> </table> <hr /> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Government data about current and former employees are classified at Minnesota Statutes, section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>The following personnel data also are public:</p> <p class="opinion_quote">The terms of any agreement settling any dispute arising out of an employment relationship except that the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money.</p> <p>(See section 13.43, subdivision 2(a)(6).)</p> <p>In her comments to the Commissioner, Ms. Clark referenced <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267765" title="96-001" target="_blank">Advisory Opinion 96-001</a>. She noted that it involved District 191 and addressed an issue similar to the one Ms. Wallner has raised. Ms. Clark further noted that the collective bargaining agreement language discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267765" title="96-001" target="_blank">96-001</a> is the same as what currently exists in the 2003 - 2005 agreement Ms. Wallner provided to the Commissioner.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267765" title="96-001" target="_blank">96-001</a>, the Commissioner wrote:</p> <p class="opinion_quote">The answer to Ms. Krisnik's question depends on whether disciplinary action was taken by Burnsville and if so, whether a final disposition occurred regarding the disciplinary action</p> <p class="opinion_quote">(Again, if the data are not disciplinary in nature, a final disposition could not have occurred, and therefore, only very limited data regarding the complaints or charges are public.)</p> <p class="opinion_quote">In determining whether either, or both, of the memos are disciplinary in nature, the Commissioner has relied upon the language, which relates to discipline, contained in the employees' contract. As provided by Ms. Krisnik, Section 12 of this contract states:</p> <p class="opinion_quote">Subd. 2. The School District shall draw [an employee's] attention to the lack of professional ways:</p> <p class="opinion_quote">a. oral reprimand <br /> b. written reprimand <br /> c. suspension without pay <br /> d. notice of deficiency <br /> e. loss of salary increase for substandard performance <br /> f. discharge per M.S. section 125.12.</p> <p class="opinion_quote">Use of items a to f above need not be in progressive order; dependent on the frequency and severity of the lack of professional conduct any or all of the above may be used.</p> <p class="opinion_quote">Subd. 3. The following information will be provided with notice of disciplinary action:</p> <p class="opinion_quote">a. a review of the rule, regulation, code, policy, etc., that defines the expected behavior; <br /> b. a description of the inaction or failure of the employee to comply with the expectation, including an outline of previous oral or written reprimands; <br /> c. a reference to the grievance process as defined in the Master Agreement; and <br /> d. notice that the Association President will be copied [on] any suspension without pay, notices of deficiency, loss of salary increases, or notice of discharge unless the [employee] objects in writing within ten (10) calendar days; any grievance in this category would begin at Level lll.</p> <p class="opinion_quote">Based on the above contract language, it appears that while there are many ways in which Burnsville may draw an employee's attention to a lack of professional conduct, any such actions taken by Burnsville are not considered disciplinary unless certain information accompanies the notice of inappropriate behavior.</p> <p class="opinion_quote">In the situation-at-hand, based on the information provided by Ms. Krisnik, it is clear that none of the information required to be provided with a notice of disciplinary action, was, in fact, provided to either employee, in either memo number one or memo number two. Therefore, it is reasonable to conclude that neither of the memos contains data documenting disciplinary action by Burnsville against the two employees.</p> <p>Discussing the situation currently before the Commissioner, Ms. Clark stated:</p> <p class="opinion_quote">None of the memoranda satisfy all the requirements of the [collective bargaining agreement] for disciplinary actions. It follows that the memoranda do not constitute or consist of data that document disciplinary action under [section 13.43].</p> <p>The Commissioner has reviewed the five memoranda and is in agreement with Ms. Clark that none of them contains all four pieces of information that must be provided with a notice of disciplinary action, as outlined in the 2003 - 2005 collective bargaining agreement. If, therefore, none of the memoranda constitute disciplinary action, a final disposition has not occurred and the data in the memoranda are private pursuant to section 13.43, subdivision 4.</p> <p>Finally, the Commissioner reminds both the District and Ms. Clark that pursuant to section 13.43, subdivision 2(a)(6), if the separation agreement between the employee and the District contains data constituting the terms of an agreement settling any dispute arising out of the employee's employment relationship with the District, those data are public. In addition, if the agreement involves the payment of more than $10,000 of public money, it must include specific reasons for the agreement.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Ms. Wallner raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">When considered in light of the collective bargaining agreement between Independent School District 191 and the Burnsville Education Association, the data in five memoranda about the District former employee do not constitute disciplinary action. Therefore, pursuant to Minnesota Statutes, section 13.43, there is no final disposition and the data are private.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 8, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675782668572665572022-01-19T19:22:18Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267231" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-27T16:14:43ZIs Hampton Township's determination that it is not subject to Minnesota Statutes, Chapter 13, appropriate given the definition of political subdivision in section 13.02, subdivision 11? If Hampton Township is subject to Minnesota Statutes, Chapter 13, did it comply with Chapter 13 in responding to a December 20, 2006, request for access to data?February 27, 2006; Hampton Township36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 26, 2006, IPAD received a letter dated January 24, 2006, from James McKenzie. In his letter, Mr. McKenzie asked the Commissioner to issue an advisory opinion regarding his right to gain access to data from Hampton Township.</p> <p>IPAD, on behalf of the Commissioner, wrote to Eunice Schiller, Clerk of Hampton Township, in response to Mr. McKenzie's request. The purposes of this letter, dated January 31, 2006, were to inform her of Mr. McKenzie's request and to ask her to provide information or support for the Township's position. On February 10, IPAD received a response, dated same, from Peter Tiede, an attorney representing the Township.</p> <p>A summary of the facts as provided by Mr. McKenzie is as follows. In a December 20, 2005, letter to Ms. Schiller, Mr. McKenzie asked to inspect certain data: plat plans, an ordinance, and data relating to a district court complaint/summons.</p> <p>In a letter dated January 17, 2006, Mr. Tiede responded first by asserting that the Township is not subject to the requirements of Minnesota Statutes, Chapter 13. Regarding the requested data, Mr. Tiede also wrote that the Township did not maintain any data beyond what it previously had provided to Mr. McKenzie.</p> <hr /> <br /> <h2>Issues: <br /></h2> Based on Mr. McKenzie's opinion request, the Commissioner agreed to address the following issues: <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Is Hampton Township's determination that it is not subject to Minnesota Statutes, Chapter 13, appropriate given the definition of political subdivision in section 13.02, subdivision 11?</li> <li>If Hampton Township is subject to Minnesota Statutes, Chapter 13, did it comply with Chapter 13 in responding to a December 20, 2006, request for access to data?</li> </ol> </td> </tr> </tbody> </table> <hr /> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Is Hampton Township's determination that it is not subject to Minnesota Statutes, Chapter 13, appropriate given the definition of political subdivision in section 13.02, subdivision 11?</em></p> <p>Minnesota Statutes, Chapter 13, applies to state agencies, political subdivisions, and statewide systems. In 2001, the Minnesota Legislature amended the definition of political subdivision to include certain townships: any town exercising powers under chapter 368 and located in the metropolitan area, as defined in section 473.121, subdivision 2.</p> <p>In his comments to the Commissioner, Mr. Tiede wrote:</p> <p class="opinion_quote">We believe it is clear that Hampton township is not a political subdivision under the definitions of Chapter 13 of Minnesota Statutes.</p> <p class="opinion_quote">[Hampton Township] is located within the metropolitan area as defined, so the only question as to whether the town is a political subdivision is where the town is exercising powers under Chapter 368.</p> <p class="opinion_quote">The powers under Chapter 368 which a town might exercise are found at section 368.01, the urban powers statute. Subdivision 1 of that statute provides urban town powers for towns which are located within twenty miles of the city hall of the [sic] city of the first class having over a 200,000 population. Hampton Township would not qualify under that section.</p> <p class="opinion_quote">The second subdivision, Subd. 1A provides:</p> <p class="opinionquoteinquote">A town with a population of 1,000 or more that does not qualify under Subd. 1 shall have the enumerated powers upon an affirmative vote of its electors at the annual town meeting.</p> <p class="opinion_quote">Subdivision 30 of that statute requires that notice be given to the auditor and the Secretary of State when the powers are assumed. Those notices are to be filed by the auditor and the Secretary of the State respectively.</p> <p class="opinion_quote">So, for Hampton Township to be exercising powers under [Chapter 368] it would have to have had an elector approval and filings would have to be made with the Secretary of State and the county auditor. If those things were done, then Hampton Township would qualify as an urban town and be subject to [Chapter 13].</p> <p class="opinion_quote">I am enclosing for you e-mail messages from the Dakota County Auditor and the Secretary of the State indicating that neither of them has any record of any filing by Hampton Township of assumption of those powers. I am enclosing for you a letter from the Town Clerk indicating, among other things, the results of her search of annual meeting minutes indicating that she was able to find no other elector authorization of assumption of urban town powers.</p> <p class="opinion_quote">It is true that Hampton Township, like other towns in Dakota County (which does not do its own zoning, but rather leaves that entirely to the townships) exercises greater authority in certain areas than townships in other counties. Indeed, most of the powers available upon exercise of Chapter 368 powers are available to all towns in the county in one form or another under other statutes or special legislation such as was passed in 1977. However, none of that matters under the plain language of [Chapter 13]. The key question is whether <u>Chapter 368</u> has been employed, and complied with, to exercise powers. [Emphasis provided.] It appears to us conclusive that Hampton Township has done nothing to exercise powers under Chapter 368. Therefore Hampton conclusively does not fall within the ambit of [Chapter 13].</p> <p>Based on the analysis Mr. Tiede provided, the Commissioner agrees that Hampton Township is not subject to the requirements of Chapter 13.</p> <h2>Issue 2:</h2> <p><em>If Hampton Township is subject to Minnesota Statutes, Chapter 13, did it comply with Chapter 13 in responding to a December 20, 2006, request for access to data?</em></p> <p>As discussed in Issue 1, Hampton Township is not subject to the requirements of Chapter 13. Therefore, it is not obliged to comply with Chapter 13 in responding to data requests.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. McKenzie raised is as follows: <br /> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Hampton Township's determination that it is not subject to Minnesota Statutes, Chapter 13, is appropriate given the definition of political subdivision in section 13.02, subdivision 11.</li> <li>Hampton Township is not subject to Minnesota Statutes, Chapter 13. Therefore, it was not obliged to comply with Chapter 13 in responding to a December 20, 2006, request for access to data.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 27, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672312671042022-01-19T19:22:19Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267978" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-24T16:14:43ZDid the Minnesota Department of Revenue comply with Minnesota Statutes, Chapter 13, in responding to a June 5, 2005, request for access to data relating to an investigation?February 24, 2006; Minnesota Department of Revenue36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: <br /></h2><p> On January 10, 2006, IPAD received a letter from John Musgjerd, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Minnesota Department of Revenue (Department.) </p><p> In response to Mr. Musgjerd's request, IPAD, on behalf of the Commissioner, wrote to Dan Salomone, Commissioner of the Department. The purposes of this letter, dated January 17, 2006, were to inform him of Mr. Musgjerd's request and to ask him to provide information or support for the Department's position. On February 7, 2006, IPAD received a response from Harriet J. Sims, Supervising Attorney representing the Department. A summary of the facts as Mr. Musgjerd presented them follows. </p><p> In a letter to Commissioner Salomone, dated June 5, 2005, Mr. Musgjerd wrote: [a]s the investigation into misconduct by the Greenwood City Assessing Officer is now formally concluded, I am requesting to inspect all of the records detailing your department's investigation. (Mr. Musgjerd submitted documents relating to his earlier efforts to gain access to these data. In a letter to IPAD dated December 8, 2003, Mr. Musgjerd stated that he was in receipt of a letter from the Department of Revenue confirming that their investigation has been formally concluded. ) </p><p> In a letter dated June 20, 2005, Commissioner Salomone responded to Mr. Musgjerd: </p><p class="opinion_quote"> I received your letter of June 5, 2005, requesting to inspect all records detailing the department's investigation. You are welcome to come to the Department to review the records whenever it is convenient for you during the time period of July 18-29, 2005. Please notify us as to what day and time will work best for you. We realize this is a month and a half from the date of your letter, however, the State Board of Equalization, as well as a physical remodeling within the Department that has physically displaced the Property Tax Division and their records, prevents us from having the records available before July 18. </p><p> Mr. Musgjerd was unable to inspect the data during the timeframe Commissioner Salomone proposed. According to Mr. Musgjerd, he arranged an appointment with the Department for November 23, 2005, at which he was to be provided the opportunity to inspect all data regarding the Department of Revenue's investigation(s) into the assessing practices in the City of Greenwood. Mr. Musgjerd stated: </p><p class="opinion_quote"> [I]t is evident that all of their investigative material has still not been made available for inspection as statutes . . . stipulate. Moreover, it is evident from the data made available to me that their investigation has long since been concluded, as indicated in internal correspondence to the Office of the Governor. However, some of the documents made available clearly indicate that there are additional documents pertaining to their review of the assessment practices of the City of Greenwood Assessor that have not been provided for inspection (specifically those documenting the nature and depth of their own investigation). </p><p class="opinion_quote"> Accordingly, I have not been provided with information requested that relates to their criminal investigation (contrary to Minnesota Statutes). Moreover, they have still not provided me with the opportunity to inspect the records supporting the [sic] own investigation (and analysis of the violations) in the assessment practices of the City of Greenwood Assessor - which their internal communications state have occurred. </p><p> In her comments to the Commissioner, Ms. Sims wrote: </p><p class="opinion_quote"> We have identified some documents which were inadvertently omitted from the box of documents which Mr. Musgjerd inspected. These documents will be mailed to Mr. Musgjerd. Aside from those documents we do not know which additional documents Mr. Musgjerd refers to. [Staff] is in the process of contacting Mr. Musgjerd to determine which additional documents he refers to. </p><p class="opinion_quote"> Mr. Musgjerd also stated in his letter that we have not provided him with information relating to [our] 'criminal investigation.' The documents do not exist. We will inform Mr. Musgjerd that we did not do a criminal investigation. </p><p class="opinion_quote"> Finally, Mr. Musgjerd's letter states that '. . . they have still not provided me with the opportunity to inspect the records supporting the (sic) own investigation' into the assessment practices of the City of Greenwood Assessor. Again, we believe that we have now provided all of the documents which relate to our investigation and to which Mr. Musgjerd is entitled and we do not know which additional documents he refers to. </p><p class="opinion_quote"> The only information not provided was the names and addresses of complainants . . . [who] requested that information concerning their complaints be kept confidential because they feared physical or financial injury if their names and addresses were made public. This information was redacted . . . pursuant to Minnesota Statutes section 13.37, subdivisions 1(a) and 2. </p><hr /><br /><h2> Issue: <br /></h2> Based on Mr. Musgjerd's request, the Commissioner agreed to address the following issue: <dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Minnesota Department of Revenue comply with Minnesota Statutes, Chapter 13, in responding to a June 5, 2005, request for access to data relating to an investigation? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Upon receipt of a request under Chapter 13 for access to government data, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. </p><p> In addition, section 13.03, subdivision 1, states that entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. </p><p> According to Mr. Musgjerd, he first requested access to the data at issue in 2003. In its June 20, 2005, response to Mr. Musgjerd's June 5, 2005, request, the Department stated that it needed six weeks to provide him with access. The Department did not state that it needed that much time because of the size or complexity of his request, but said: the State Board of Equalization, as well as a physical remodeling within the Department that has physically displaced the Property Tax Division and their records, prevents us from having the records available before July 18. That response is neither prompt nor reasonable under the circumstances. </p><p> Furthermore, as of the date of its response to the Commissioner, the Department had not provided Mr. Musgjerd with access to all of the data to which he was entitled, advised him of the statutory basis upon which it relied to deny him access to some of the data, or informed him that some of the data he requested do not exist. According to the Department, as of the date of its response to the Commissioner, it still needs to clarify with Mr. Musgjerd just what data he seeks. </p><p> The Commissioner encourages both parties to make reasonable efforts to resolve disputes like this one. Both the Department and Mr. Musgjerd had obligations to seek clarification from one another as issues arose. Mr. Musgjerd could have sought the assistance of the Department's Responsible Authority or Data Practices Compliance Official; the Department should have contacted Mr. Musgjerd promptly as soon as it realized it needed clarification. </p><hr /><p /><h2> Opinion: </h2><br /> Based on the facts and information provided, my opinion on the issue that Mr. Musgjerd raised is as follows: <br /><p /><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"> The Minnesota Department of Revenue did not comply with Minnesota Statutes, Chapter 13, in responding to a June 5, 2005, request for access to data relating to an investigation. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: February 24, 2006 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679782022-01-19T19:22:18Z266258266414266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267399" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-21T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Public Safety maintains: a response to a Department request for proposal?February 21, 2006; Minnesota Department of Public Safety36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 3, 2006, IPAD received a letter dated December 30, 2006, from E. Joseph Newton, Legal Counsel for the Minnesota Department of Public Safety. In his letter, Mr. Newton asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Department maintains.</p> <p>A summary of the facts is as follows. In his opinion request, Mr. Newton wrote that the State Patrol requested proposals to provide certain services:</p> <p class="opinion_quote">Two proposals were submitted and one accepted. Subsequently, a request was made under [Chapter 13] for information related to the recent request for proposals for pre-employment psychological evaluations of State Patrol Trooper candidates [including] all proposals submitted to whom the proposal was awarded and feedback as to the reason or reasons that our proposal wasn't [sic] unsuccessful. </p> <p class="opinion_quote">Upon receipt of the request the State Patrol informed the only other entity that submitted a response to the request, which was ultimately the successful vendor, (hereinafter data subject ) [Michael Campion of Campion, Barrow Associates] of the pending request. The State Patrol received a letter from the data subject claiming the requested data was general non-public data under the trade secrets definition found at Minn. Stat. sec. 13.37 subd. 1(b). The State Patrol then corresponded with the requester informing him of the trade secrets claim and contemporaneously notified the data subject setting forth the reasons the Department of Public Safety determined the data was public under [Chapter 13] and asking for any information supporting the contention the data was trade secret. The data subject corresponded with the Department of Public Safety setting forth its analysis Upon receipt of the response the Department of Public Safety determined the data was not trade secret and therefore public and informed both parties of the intent to seek an opinion. The Department of Public Safety is of the opinion the data requested is public data</p> <p>In his November 2, 2005, letter to Mr. Campion, Lt. Colonel Daly of the State Patrol wrote:</p> <p class="opinion_quote">I am in receipt of your October 28 letter wherein you allege the Response to Proposal with regard to your psychological testing contract is trade secret. Please inform us how this information is trade secret. Specify in all detail any and all reasons the data is trade secret only items that you can sufficiently claim to be trade secret will be protected non public data.</p> <p>In his November 15, 2005, response, Mr. Campion stated:</p> <p class="opinion_quote">We have no problem with you releasing the psychological testing contract that you mentioned. We understand that it is public information. However the written document apart from the contract that we produced is of independent economic value. To release our several-hundred-page RFP would provide information that took us a number of years to develop as to the format and content, as well as generating the various documents. As per the statute mentioned, we definitely consider our RFP, aside from the contract, to be trade secret as defined and classified in section 13.37.</p> <p class="opinion_quote">The statute you mention in your letter, I think, clearly indicates that you do not have to release our RFP response because it will be used solely by our competition to learn how to write an RFP, which would cause us economic harm, as well as the fact that it is a trade secret as protected by section 13.37.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Newton's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Public Safety maintains: a response to a Department request for proposal?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Government data are public unless otherwise classified. (See Minnesota Statutes, section 13.03, subdivision 1.)</p> <p>Section 13.591, subdivision 3 (b), classifies data submitted by a business to a government entity in response to a request for proposal:</p> <p class="opinion_quote">Data as defined in section 16C.02, subdivision 12, are private or nonpublic until the responses are opened. Once the responses are opened, the name of the responder is read and becomes public. All other data in a responder's response to a request for proposal are private or nonpublic until completion of the evaluation process. After a government entity has completed the evaluation process, all remaining data submitted by all responders are public with the exception of trade secret data as defined and classified in section 13.37. A statement by a responder that submitted data are copyrighted or otherwise protected does not prevent public access to the data contained in the response.</p> <p>Subdivision 4(a) of section 13.591 provides:</p> <p class="opinion_quote">Data created or maintained by a government entity as part of the selection or evaluation process referred to in this section are protected nonpublic data until completion of the selection process or completion of the evaluation process at which time the data are public with the exception of trade secret data as defined and classified in section 13.37.</p> <p>Trade secret is defined in section 13.37, subdivision 1(b), as:</p> <p class="opinion_quote">Trade secret information means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</p> <p>Pursuant to subdivision 2 of section 13.37, trade secret data are classified as nonpublic (data not on individuals) and as private (data on individuals).</p> <p>In an effort to provide further clarification, the Commissioner previously has described the required trade secret elements as follows: (1) a collection of information; (2) that was supplied by the affected individual or organization; (3) that is the subject of reasonable efforts to maintain its secrecy; and (4) that a) derives independent, i.e., on its own, economic value, b) from not being generally known to or readily ascertainable by, c) other persons who can obtain economic value from its disclosure or use. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267811" title="03-017" target="_blank">Advisory Opinion 03-017</a>.)</p> <p>As the Commissioner remarked in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267690#/detail/appId/1/id/267690" title="03-009" target="_blank">Advisory Opinion 03-009</a>, because the authority in section 13.072 is limited, it is difficult for her to become an expert in understanding whether certain data derive an independent economic value by being protected from public disclosure. Clearly, the individuals who create the data, whether they are outside vendors or government staff, are in the best position to make the case as to how the data satisfy the requirements of section 13.37, subdivision 1(b).</p> <p>In the present situation, Campion, Barrow and Associates provided the data to the Department as part of its response to a request for proposal. Mr. Campion informed the Department that the data were trade secret and should not be released. The Department, in complying with its obligation to determine the classification of the data, contacted Mr. Campion and asked him to explain how the data meet the criteria established in section 13.37. Upon receiving Mr. Campion's response, the Department apparently was not persuaded: Mr. Newton informed Mr. Campion that the Department's position remains that the data are public. The Commissioner agrees with Mr. Newton that Mr. Campion's argument was not persuasive. If Mr. Campion disagrees, he has the option of bringing an action in court to prevent the Department from releasing the data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Newton raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Commissioner agrees with the Minnesota Department of Public Safety that the response to a Department request for proposal is public data pursuant to Minnesota Statutes, Chapter 13.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 21, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673992666782664742022-01-19T19:22:18Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266994" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-14T16:14:43ZDid the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to an August 25, 2005, request for data?February 14, 2006; Red River Water Management Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 5, 2006, IPAD received a letter dated January 2, 2006, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Red River Water Management Board (RRWMB).</p> <p>IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, Administrator of RRWMB, in response to Mr. Stengrim's request. The purposes of this letter, dated January 11, 2006, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the RRWMB's position. On February 3, 2006, IPAD received a response, dated same, from Louis Smith, an attorney representing the RRWMB.</p> <p>A summary of the facts as provided by Mr. Stengrim is as follows. In a letter dated August 25, 2005, he wrote to Ms. Erickson and asked to inspect the following data:</p> <p class="opinion_quote">1. Data that shows the specific area the Agassiz Valley Water Management Project provides flood protection for. <br /> 2. The data that shows what townships initiated the Agassiz Valley Water Management Project. <br /> 3. The data that shows that the Agassiz Valley Water Management Project will protect the townships infrastructure. <br /> 4. The data that shows that the combined efforts of the projects mentioned will affect the peak flows on the main stem of the Red River and offer flood protection downstream.</p> <p>In a letter dated September 23, 2005, Mr. Smith wrote to Mr. Stengrim:</p> <p class="opinion_quote">Your request of August 25, 2005 requests data concerning the Agassiz Valley Water Management Project. The RRWMB will provide its Agassiz Valley project file for your inspection on the dates noted below; you are also directed to the Middle Snake Tamarac Rivers Watershed District [MSTRWD] for further information about the project.</p> <p>In a letter dated October 2, 2005, Mr. Stengrim wrote to Mr. Smith: It is not clear in your letter if the specific data pertaining to the request dated August 25, 2005 will be available for inspection. Please confirm that this specific data will be available and easily identifiable.</p> <p>When Mr. Stengrim went to inspect the data on October 24, 2005, he apparently was presented with a letter, dated same, from Mr. Smith. Mr. Smith wrote:</p> <p class="opinion_quote">Concerning your request of August 25, 2005, the RRWMB has produced its Agassiz Valley project file for your inspection, and marked the relevant items in the file responsive to your request. Concerning item #2 of that request, please note that the Step One submittal identifies the various stakeholders involved in project initiation; we have not located in the RRWMB's files data concerning specific township initiation, but such data may be available with the MSTRWD.</p> <p>In a letter dated October 31, 2005, Mr. Stengrim wrote to Ms. Erickson: [referring to the inspection] when data to be responsive to [items #1 and #3] was produced for inspection the data did 'not' address the request.</p> <p>In a letter dated November 15, 2005, Ms. Erickson wrote to Mr. Stengrim:</p> <p class="opinion_quote">The Step 1 submittal and Preliminary Engineer's Report for the Agassiz Valley Water Management Project were produced for your inspection in response to the items you referenced. Further, specific pages were marked in these reports with Post-It notes and clearly identified in reference to your questions. When you stated that you were seeking more specific detail concerning local benefits of the proposed project, we indicated that the information produced was all that was in the possession of the RRWMB on this topic and we referred you to the [MSTRWD] for further information.</p> <p>In his opinion request, Mr. Stengrim wrote:</p> <p class="opinion_quote">To this date it is unclear if the RRWMB produced all the requested public data. It appears that the RRWMB has been very unclear and ambiguous in responding to the August 25, 2005 data request.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Stengrim's opinion request, Mr. Stengrim asked the Commissioner to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to an August 25, 2005, request for data?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.</p> <p>In his comment to the Commissioner, Mr. Smith wrote:</p> <p class="opinion_quote">In summary, the RRWMB clearly provided all data in its possession responsive to Mr. Stengrim's request; he simply appears to desire additional information that the RRWMB does not have, and this was clearly explained to him. Ms. Erickson and Mr. Deal pointed out that the RRWMB funds projects like the Agassiz Valley Water Management Project based on a regional benefit, and that data concerning more localized benefits may be available through the local watershed district.</p> <p>Mr. Stengrim and the RRWMB appear to be having a dispute as to what data the RRWMB does or does not have that are responsive to his request. Some of this dispute might have been avoided if the RRWMB had sought clarification from Mr. Stengrim about his request.</p> <p>When Mr. Stengrim inspected the data, Mr. Smith's letter advised that the RRWMB had marked the relevant items in the file responsive to [his] request. Upon inspecting the data, Mr. Stengrim determined that the data RRWMB located relating to items #1 and #3 of his request were not what he was seeking. At that point it is not clear whether Mr. Stengrim asked the RRWMB if they had the data. Ms. Erickson's letter of November 15, 2005, also lacks clarity in that the Commissioner cannot determine whether she is addressing Mr. Stengrim's concerns about items #1 and #3 of his request. Not until Mr. Smith's February 3, 2006, letter to the Commissioner is the RRWMB's position clear - it provided to Mr. Stengrim all data in its possession responsive to his request.</p> <p>The facts of this situation are such that the Commissioner is unable to determine whether the RRWMB complied with Chapter 13 in communicating what data did not exist. As the Commissioner has written in previous opinions involving the same two parties, she encourages them to find a way to resolve the data practices issues they are experiencing. She specifically notes that a government entity, in fulfilling its obligation to respond to data requests, first must determine whether it maintains the requested data. If not, it must so inform the requestor. Further, if the request is written in such a way that it is not easily understood, the entity should seek clarification before proceeding. Finally, the Commissioner notes that data requestors need to be as clear as possible in their communications relating to data requests.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Commissioner cannot determine whether the Red River Watershed Management Board complied with Minnesota Statutes, Chapter 13, in responding to an August 25, 2005, request for data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 14, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2669942662752022-01-19T19:22:17Z266258266272266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267543" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-10T16:15:43ZDid the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to an August 29, 2005, request to inspect "financial records showing payments to the Middle Snake Tamarac Rivers Watershed District for the Agassiz Valley Project?"February 10, 2006; Red River Water Management Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On January 5, 2006, IPAD received a letter dated December 31, 2005, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Red River Watershed Management Board (RRWMB).</p> <p>IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, Administrator of RRWMB, in response to Mr. Stengrim's request. The purposes of this letter, dated January 11, 2006, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for RRWMB's position. On January 24, 2006, IPAD received a response, dated same, from Ms. Erickson.</p> <p>A summary of the facts as provided by Mr. Stengrim is as follows. In a letter dated August 29, 2005, Mr. Stengrim wrote to Ms. Erickson and, among other items, asked to inspect financial records showing payments to the Middle Snake Tamarac Rivers Watershed District [MSTRWD] for the Agassiz Valley Project.</p> <p>Louis Smith, an attorney representing the RRWMB, responded on September 23, 2005, stating, The RRWMB's complete file for the Agassiz Valley Water Management Project will be provided for your inspection. He offered several dates and times for Mr. Stengrim to choose among.</p> <p>In a letter dated October 31, 2005, Mr. Stengrim wrote to Ms. Erickson regarding his October 24, 2005, inspection of the data:</p> <p class="opinion_quote">Data produced for inspection was a letter dated November 16, 2004 from the MSTRWD signed by President Doug Sorenson requesting payment of $396,080.93. Also produced was a document titled Red River Watershed Management Board Disbursement Voucher . This document indicates that $396,080.93 was disbursed on November 17, 2004. The conclusion based on the data is that the RRWMB has only made payments of $396.080.93 to the MSTRWD for the Agassiz Project.</p> In a letter dated November 15, 2005, Ms. Erickson wrote to Mr. Stengrim, we produced the data you requested, which reflects a single payment made to the [MSTRWD] for the Agassiz Project in the amount of $396,080.93. <p>In his opinion request, Mr. Stengrim wrote:</p> <p class="opinion_quote">In reviewing the annual audits of the [MSTRWD] for the years 2001, 2002, 2003 and 2004 it appears that the RRWMB has given the MSTRWD almost $500,000 for the Agassiz Project. It is difficult to understand how the RRWMB claims a single payment was made when the annual audits reflect at least four payment have been made.</p> <p>Mr. Stengrim provided a copy of the MSTRWD's <em>Statement of Receipts and Disbursements and Changes in Fund Balance - Capital Project Funds - Construction - Modified Cash Basis</em> for years 2001, 2002, and 2003.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Stengrim's opinion request, the Commissioner to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to an August 29, 2005, request to inspect financial records showing payments to the Middle Snake Tamarac Rivers Watershed District for the Agassiz Valley Project?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.</p> <p>In her comments to the Commissioner, Ms. Erickson wrote:</p> <p class="opinion_quote">The [RRWMB] has made a single payment to the [MSTRWD] for the Agassiz Project, on November 17, 2004 in the amount of $396,080.93. This information was provided to Mr. Stengrim at his request. In addition, the Red River Basin Flood Damage Reduction Work Group is an entity, separate from the [RRWMB], which receives funding directly from the Minnesota Legislature, appropriated to the Minnesota Department of Natural Resources. The purpose of this Work Group is to facilitate implementation of the Mediation Agreement signed in December of 1998. The RRWMB acts as a fiscal agent to pass through these state funds as allocated and approved by the Work Group.</p> <p class="opinion_quote">The RRWMB forwarded Work Group funding in 2001 to the [MSTRWD]. Work Group funding was disbursed to the District for preliminary engineering and for final engineering for the Agassiz Project. In addition to this direct funding for the Agassiz Project from the Work Group, the Work Group has authorized funding for the [MSTRWD] for more general project team alternative analysis and support costs. Some of these funds could have been used by the local watershed district for the Agassiz Project, but the Work Group and the RRWMB would have no way of recording such an allocation to the project by the District.</p> <p class="opinion_quote">I wish to point out that all of the above information was provided to Mr. Stengrim. The annual financial reports of the RRWMB document these pass-through funding allocations from the Work Group to local watershed districts, and were provided to Mr. Stengrim. As you know, Mr. Stengrim also obtained annual reports and financial information from the [MSTRWD] that also provides this information. We feel at all times the RRWMB has endeavored to comply with [Chapter 13] to provide Mr. Stengrim with the data he has requested.</p> <p>Mr. Stengrim asked to inspect financial records showing payments for the Agassiz Project made by the RRWMB to the MSTRWD. The RRWMB's response was to provide, for his inspection, a document indicating that $396,080.93 was disbursed on November 17, 2004. Ms. Erickson states the RRWMB has made a single payment to the MSTRWD. Therefore, it appears the RRWMB responded appropriately to Mr. Stengrim's data request.</p> <p>The following additional comments are in order. If Mr. Stengrim was seeking information about expenditures from the RRWMB as fiscal agent for the Red River Basin Flood Damage Reduction Work Group, he needed to be more specific in his data request. Similarly, if Ms. Erickson suspected Mr. Stengrim was asking for data relating to the Work Group expenditures, she could have sought clarification.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Red River Watershed Management Board complied with Minnesota Statutes, Chapter 13, in responding to an August 29, 2005, request to inspect financial records showing payments to the Middle Snake Tamarac Rivers Watershed District for the Agassiz Valley Project.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 10, 2006</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675432663982663992022-01-19T19:22:17Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267980" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-02-10T16:14:43ZHas the Middle-Snake-Tamarac Rivers Watershed District complied with Minnesota Statutes, Chapter 13, in regard to a November 10, 2005, request for data?February 10, 2006, 2006; Middle-Snake-Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 29, 2005, IPAD received a letter dated December 27, 2005, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Middle-Snake-Tamarac Rivers Watershed District (MSTRWD).</p> <p>IPAD, on behalf of the Commissioner, wrote to Nick Drees, Administrator of MSTRWD, in response to Mr. Stengrim's request. The purposes of this letter, dated December 30, 2005, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for MSTRWD's position. On January 11, 2006, IPAD received a response, dated same, from Jeffrey Hane, an attorney representing MSTRWD.</p> <p>A summary of the facts is as follows. In a letter dated November 10, 2005, Mr. Stengrim wrote to Mr. Drees and asked to inspect the following data:</p> <p class="opinion_quote">1. All data concerning requests for funds from the Red River Watershed Management Board for the Agassiz Valley Project. <br /> 2. All financial data showing all funds received from the Red River Watershed Management Board for the Agassiz Valley Project. <br /> 3. All data related to the spending of funds received from the Agassiz Valley Project.</p> <p>In a letter dated November 23, 2005, Mr. Drees responded: I have received your data request and I am looking for information on the Agassiz Valley Project.</p> <p>On December 15, 2005, Mr. Drees wrote a second letter to Mr. Stengrim. Mr. Drees stated: In reviewing your request ... it appears this request is similar to a request that you previously made. Much of this data you appear to be asking for was made available to you. Are you asking for an update of this data? Would you be more specific on your request. Mr. Hane wrote that Mr. Stengrim did not respond.</p> In his opinion request, Mr. Stengrim wrote, The requests were made more than 45 days ago and the last correspondence concerning the requests is over 30 days ago. <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Stengrim's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Has the Middle-Snake-Tamarac Rivers Watershed District complied with Minnesota Statutes, Chapter 13, in regard to a November 10, 2005, request for data?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>In his comments to the Commissioner, Mr. Hane wrote that after Mr. Drees wrote to Mr. Stengrim on November 23, 2005, it appeared to Mr. Drees that most of the materials had already been provided to Mr. Stengrim.</p> <p>Mr. Hane cited six previous instances in which Mr. Stengrim has made requests for data relating to the Agassiz Project. Mr. Hane stated:</p> <p class="opinion_quote">Mr. Stengrim's requests are so broad that they are nearly impossible for the Watershed to satisfy with any certainty....</p> <p class="opinion_quote">The majority of the requests include the phrases any data or all data. The frustration of the Watershed is that the requests put the Watershed in the position of having to try and discern what materials are included in the various requests and then place the burden on the Watershed to dig through all available files and sort through to find every single item that might be responsive to these requests.</p> <p>Of Mr. Stengrim's November 10, 2005, request, Mr. Hane wrote:</p> <p class="opinion_quote">Mr. Stengrim's request does not narrow the data he seeks at all in terms of chronology. It appears he is asking Mr. Drees to produce for Stengrim's inspection any data, written or electronic, that pertains whatsoever to any funds from the Red Board that had ever been requested, received or spent on the Agassiz project. In theory, Mr. Stengrim's letter asks to review every single receipt, cancelled check, letter, financial print-out, etc. that has anything to do with the Agassiz Valley Project....</p> <p class="opinion_quote">It should be apparent why Mr. Drees asked Mr. Stengrim to clarify the scope of his request given the volumes of data previously provided to him.</p> <p>The Commissioner has the following comments. One of a government entity's responsibilities under Chapter 13 is to locate and provide data, in a reasonable amount of time, in response to data practices requests. To better comply with this requirement, section 13.03, subdivision 1, states that entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Further, when an individual wants to gain access to data about a certain issue but doesn't know specifically what kinds of data the entity maintains related to that issue, it is reasonable for the individual to make a request for all/any data relating to the specific issue.</p> <p>With respect to Mr. Stengrim's November 10, 2005, request, the MSTRWD apparently sought clarification after receiving the request. Mr. Hane states Mr. Stengrim did not respond. Given the number and substance of Mr. Stengrim's previous data requests related to the Agassiz Project, it seems reasonable that Mr. Drees would ask for clarification. It also seems reasonable that Mr. Stengrim would provide clarification. The key, however, is that the MSTRWD needed to seek clarification soon after receiving the November 10 letter to give itself enough time to respond appropriately. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267593" title="04-066" target="_blank">Advisory Opinion 04-066</a>.) The MSTRWD sought clarification approximately 35 days after receiving the request; in the Commissioner's opinion, this is not appropriate.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Middle-Snake-Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in regard to a November 10, 2005, request for data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 10, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2679802022-01-19T19:22:17Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267998" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2006-01-30T16:14:43ZDid Independent School District 281, Robbinsdale Area Schools, comply with Minnesota Statutes, Chapter 13, in responding to a request for copies of the following data: "data that document how much money the District spent on the summons and complaint - Independent School District 281 v. Service Employees International Union Local 284 - and all grievances related to the summons and complaint?" January 31, 2006; School District 281 (Robbinsdale Area)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History: <br /></h2> <p>On December 15, 2005, IPAD received a letter, dated same, from Gregory Carlson. In his letter, Mr. Carlson asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from Independent School District 281, Robbinsdale Area Schools.</p> <p>IPAD, on behalf of the Commissioner, wrote to Stan Mack, Superintendent of the District, in response to Mr. Carlson's request. The purposes of this letter, dated December 19, 2005, were to inform him of Mr. Carlson's request and to ask him to provide information or support for the District's position. On January 13, 2006, IPAD received a response, dated January 12, 2006, from Susan Hansen, an attorney representing the District.</p> <p>A summary of the facts as Mr. Carlson presented them is as follows. In a letter dated September 21, 2005, Mr. Carlson wrote to the District and asked for certain financial data relating to issues between the District and Service Employees International Union Local 284. Mr. Carlson's request included, among other items, the specific data at issue in this opinion - data relating to costs the District incurred for work on an August 25, 2005, Summons and Complaint and all related grievances. Mr. Carlson asked for the data Broken down by category (per-day, per-month, per-year) and total expense for each category.</p> <p>The District responded by stating that the District does not maintain the data you are seeking in the format you are requesting. Rather than explaining how the District does maintain the actual data, the District provided Mr. Carlson with a spreadsheet, which contains the legal costs incurred. The District also provided a list, which contained salary information for the district negotiations team.</p> <p>In a letter dated November 12, 2005, Mr. Carlson wrote again to the District stating that some of the information he requested was not provided. He wrote:</p> <p class="opinion_quote">I am sending a second data request asking for all copies of data that document how much money the District spent on the Summons and Complaint - <em>Independent School District v. Service Employees International Union Local 284</em> and all grievances related to the Summons and Complaint.</p> <p class="opinion_quote">I am asking for the expenses to be itemized by (date, event, type of expense, etc.) if you maintain the data that way. If you do not maintain the data in this way, please inform me as to whether you are able to provide the data in this way and how much it will cost.</p> <p>The District responded in a letter dated November 29, 2005, The legal fees from Frank Madden Associates related to the litigation matter totaled $546. (October 1, 2005 billing)</p> <p>In his opinion request, Mr. Carlson wrote, I do not feel [the District's response] answers what I am requesting for data.</p> <hr /> <br /> <h2>Issue: <br /></h2> Based on Mr. Carlson's opinion request, the Commissioner agreed to address the following issue: <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Independent School District 281, Robbinsdale Area Schools, comply with Minnesota Statutes, Chapter 13, in responding to a request for copies of the following data: data that document how much money the District spent on the summons and complaint - <em>Independent School District 281 v. Service Employees International Union Local 284</em> - and all grievances related to the summons and complaint?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>In her comments to the Commissioner, Ms. Hansen wrote:</p> <p class="opinion_quote">The School District complied with Mr. Carlson's [September 21, 2005] request for data to the extent it understood the request. Specifically [the District] provided him with information regarding the legal costs incurred by the School District. The School District provided Mr. Carlson with a detailed spreadsheet which included the dates legal services were rendered, a description of the legal services provided on the respective dates, the identity of the law firm that provided the legal services, the amount of the legal fees, and the date of the School District's payment of the legal fees.</p> <p class="opinion_quote">[Regarding the November 12, 2005, data request] The School District again promptly complied with Mr. Carlson's request to the extent the District understood it. On November 29, 2005, the District responded to Mr. Carlson's second data request and indicated that the legal fees related to the Summons and Complaint totaled $546 from the October 1, 2005 billing from the law firm of Frank Madden Associates.</p> <p>In a December 7, 2005 letter to [IPAD], Mr. Carlson stated that based on the School District's initial October 13, 2005 submission, he received <em>most</em> of the data requested. (emphasis added). Mr. Carlson stated, however, that he believed there was more data that the School District had not provided.</p> <p>The School District did not provide copies of the billing statements from the law firm that provided the legal services based on the fact that the statements included fees for matters not included in Mr. Carlson's request for data. Instead, the School District provided Mr. Carlson with a spreadsheet on October 13 and information in the November 29 letter specific to the matters referenced by Mr. Carlson. In the interest of cooperation and in an effort to satisfy Mr. Carlson, in addition to the information previously submitted to Mr. Carlson on October 13 and November 29 by the School District, we are enclosing with this letter all itemized billing statements from the law firm of Frank Madden Associates from September 1, 2004 to the present. These documents provide a detailed and itemized listing of the School District's legal fees including, but not limited to, the Summons and Complaint filed on August 29, 2005 and grievances related to the Summons and Complaint, the first of which was filed on October 12, 2004. These billing statements are being provided to Mr. Carlson by copy of this letter.</p> <p>The issue before the Commissioner is whether the District complied with Chapter 13 in responding to Mr. Carlson's request for copies of financial data concerning the Summons and Complaint, and related grievances. He first asked for these data as part of a larger request. Upon receiving the spreadsheet from the District, Mr. Carlson narrowed his request to those data concerning the Summons and Complaint, etc. The District's response was to provide a total dollar expenditure amount. Later, as part of her comments regarding Mr. Carlson's opinion request, Ms. Hansen provided to Mr. Carlson copies of itemized billing statements sent from her law firm to the District, but these statements also include billings for projects other than the Summons and Complaint, etc.</p> <p>When an individual makes a request under Chapter 13 for access to government data, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. If the individual asks the entity for data categorized in such a way that the entity must create data to respond to the request, the entity should advise the requestor that nothing in Chapter 13 requires government entities to format/create data to respond to a data request and that such requests are beyond the purview of Chapter 13. It is up to the entity and the requestor to determine if they can arrive at a mutually acceptable agreement to create or format the data; no statutory language dictates what the entity may or may not charge. In addition, when an individual requests data such that an entity must create data to respond, the entity should give the requestor the option of compiling the information him/herself, using the data that do exist.</p> <p>Here, in his second request, Mr. Carlson asked for copies of data. He also asked that the data be itemized in a specific way, if possible. The District responded by providing him with a total dollar expenditure amount. In the Commissioner's opinion, the District's response was not appropriate; it needed to explain to Mr. Carlson what data do exist, how those data are categorized, that the District can charge a fee to create data, and ask him how he would like to proceed.</p> <p>While Ms. Hansen provided monthly billing statements as part of her response to Mr. Carlson's opinion request, she did not clarify whether these are the only data the District maintains regarding how much money the District spent on legal services - in other words, that there are no data providing a break-down of expenditures relating to the Summons and Complaint, etc. The Commissioner knows only that the District did not previously provide copies of these documents to Mr. Carlson because the [billing] statements included fees for matters not included in Mr. Carlson's request for data. As previously stated, the District needed to explain to Mr. Carlson what data it does maintain and ascertain whether Mr. Carlson wished to access those data or request that the District create new data.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Carlson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Independent School District 281, Robbinsdale Area Schools, did not comply with Minnesota Statutes, Chapter 13, in responding to a request for copies of the following data: data that document how much money the District spent on the summons and complaint - Independent School District 281 v. Service Employees International Union Local 284 - and all grievances related to the summons and complaint.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 30, 2006</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2679982022-01-19T19:22:17Z266258266394266375266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267735" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-12-28T16:14:43ZDid the City of Hopkins comply with Minnesota Statutes, Chapter 13, in responding to a data request for the 2004 study of the "Van Buren area drainage system?"December 28, 2005; City of Hopkins36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 21, 2005, IPAD received a letter, dated same, from Erwin Stobbe. In his letter, Mr. Stobbe asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Hopkins.</p> <p>IPAD, on behalf of the Commissioner, wrote to Richard Getschow, Hopkins' City Manager, in response to Mr. Stobbe's request. The purposes of this letter, dated November 28, 2005, were to inform him of Mr. Stobbe's request and to ask him to provide information or support for the City's position. On December 9, 2005, IPAD received a response, dated same, from Wynn Curtiss, an attorney representing the City.</p> <p>A summary of the facts as Mr. Stobbe provided them is as follows. In his opinion request, Mr. Stobbe wrote:</p> <p class="opinion_quote">In the Spring of 2004 the City of Hopkins hired an engineer to study the flooding in the area of my property in Hopkins, Minnesota. This study was conducted after a tenant of the property brought a suit to conciliation court, against myself as property owner. The suit was a result of the tenants [sic] flooded car that was parked in [sic] underground garage on the property. The tenants' [sic] car was flooded in July of 2003. The conciliation court ruled in favor of myself, owner of the property, thus releasing any liability of the City of Hopkins or myself.</p> <p class="opinion_quote">I am requesting a copy of the engineers' [sic] study.The City of Hopkins attorney has refused to release a copy of the study, citing MN statute. 13.39 Subd 2. I believe that argument is invalid due to the fact that any possible lawsuit is no longer valid. The statute of limitations has expired.</p> <p>To his opinion request, Mr. Stobbe attached copies of several letters. One letter is his data request, dated October 22, 2005. The second letter is an October 26, 2004 (the Commissioner assumes this to be a typographical error), response from Mr. Curtiss:</p> <p class="opinion_quote">It is the City's position that the engineering study was obtain [sic] pursuant to [section 13.39] and is, therefore, not public information. Further, it is the City's position that this information is protected from disclosure as it is attorney work product and constitutes the opinion of the City's expert witness.</p> <p>Mr. Stobbe's attorney responded in a letter dated November 1, 2005:</p> <p class="opinion_quote">You are aware that the study which was done in early 2004, was predicated upon a possible lawsuit that might have occurred due to a July 2003 incident. I believe the time period for a lawsuit on that action has now expired. As the Statute of Limitations has passed, your argument that the material is being maintained for the purposes of commencement or defense of a pending civil legal action no longer applies.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Stobbe's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Hopkins comply with Minnesota Statutes, Chapter 13, in responding to a data request for the 2004 study of the Van Buren area drainage system?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>In his comments to the Commissioner, Mr. Curtiss wrote:</p> <p class="opinion_quote">In the summer of 2003, flooding occurred in [the parking garage owned by Mr. Stobbe]. In September 2003, an attorney contacted Mr. Stobbe [Mr. Curtiss provided a copy of this letter] seeking payment for damages allegedly caused to tenant's [sic] vehicles as a result of the flooding. In turn, Mr. Stobbe, through his attorney, Mr. Lawrence Marofsky, contacted Hopkins by letter dated September 30, 2003, and stated that any claim by a tenant against my client will result in a request for indemnification by the city for its failure to maintain its drainage system. [Mr. Curtiss attached a copy of this letter.] In response to Mr. Marofsky's letter, and after consultation with my office, Hopkins retained an outside engineering firm to determine whether Hopkins was liable for the flooding and the resulting damages.</p> <p class="opinion_quote">Upon the completion of the study by Hopkins' engineering firm, Hopkins Public Works Director Steve Stadler wrote Mr. Stobbe on March 17, 2004 [Mr. Curtiss provided a copy of this letter] indicating that Hopkins' engineers had determined the city was not liable for [the flooding]. In response, Mr. Marofsky sent a letter on March 31, 2004 [Mr. Curtiss provided a copy of this letter] requesting a copy of the engineering report.The report was not provided.</p> <p class="opinion_quote">In August 2004, an attorney representing [Mr. Stobbe's] tenants filed a conciliation court action against Mr. Stobbe, claiming that the flooding damaged his client's [sic] vehicles. On August 9, 2004, Mr. Marofsky sent a letter to Hopkins indicating that [Mr. Stobbe] considered Hopkins legally responsible for the damages and demanding that Hopkins agree to pay any damages or [Mr. Stobbe] would file suit against Hopkins. Mr. Marofsky enclosed a copy of an executed Third Party Complaint naming the City of Hopkins as the Third Party Defendant. [Mr. Curtiss attached a copy of the letter and the complaint.]</p> <p class="opinion_quote">Mr. Stobbe did, in fact, file his Third Party claim against Hopkins. In November 2004, the tenant's [sic] claim against Mr. Stobbe was dismissed and the Third Party claim against Hopkins also was dismissed.</p> <p class="opinion_quote">Based on the threat of litigation against Mr. Stobbe and the threat of litigation from Mr. Stobbe against Hopkins, it was my position that this matter involved a pending civil legal action against Hopkins and thus, the information collected by Hopkins regarding this matter is non-public, including specifically but not limited to, the engineer's report obtained by Hopkins after receipt of the letter from Mr. Stobbe's attorney.</p> <p>The Commissioner has the following comments. Pursuant to section 13.39, if a government entity's chief attorney determines that a civil legal action is pending, the following data are classified as protected nonpublic (data not on individuals) and confidential (data on individuals): data collected as part of an active investigation undertaken for the purpose of the commencement or defense of the pending civil legal action, or retained in anticipation of a pending civil legal action.</p> <p>Subdivision 3 of section 13.39 provides that civil investigative data become public upon the occurrence of any of the following events: (1) a decision by the entity not to pursue the civil action; (2) the expiration of the time to file a complaint under the statute of limitations or agreement applicable to the civil action; or (3) the exhaustion of or expiration of rights of appeal by either party to the civil action.</p> <p>In his comments to the Commissioner, Mr. Curtiss states that the engineering report was created/collected because of the threat of litigation from Mr. Stobbe. Mr. Curtiss also states that his position was that the matter involved a <em>pending civil legal action</em>. Thus, based on the language in section 13.39, it appears the City's initial withholding of the report was appropriate.</p> <p>However, Mr. Stobbe asserts that because the statute of limitations now has expired on any civil action, the City should release the report. He wrote, any possible lawsuit is no longer valid. Mr. Stobbe added, The engineer for Minnehaha Creek Watershed District was given the opportunity to review the [City's] engineered report from the spring of 2004. If this study is truly protected and private, then why was an engineer allowed to view the report? Mr. Curtiss wrote:</p> <p class="opinion_quote">Because the data was acquired [as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action] it remains protected nonpublic data permanently. There is nothing in the statutes or case law that indicates that this type of data is converted to public data after a set period of time.</p> <p>The Commissioner disagrees. Section 13.39, subdivision 3, provides that civil investigative data previously classified as not public become public when the time to file a complaint under the statute of limitations has expired. Assuming the statute of limitations for Mr. Stobbe to bring an action against the City has expired, the engineer's report now is public. (The Commissioner notes Mr. Curtiss did not argue with Mr. Stobbe's assertion that the statute of limitations on Mr. Stobbe's claim has expired.)</p> <p>Mr. Curtiss also argues that the report is protected from disclosure on the grounds it is attorney work product and is the work product of an expert witness, which is not generally discoverable.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267516" title="05-009" target="_blank">Advisory Opinion 05-009</a>, the Commissioner discussed section 13.393, which allows government entities to protect certain data from disclosure. She wrote:</p> <p class="opinion_quote">Section 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.</p> <p>Also in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267516" title="05-009" target="_blank">05-009</a>, the Commissioner discussed <em>City Pages v. State of Minnesota</em>, 655 N.W.2d 839 (Minn.App. 2003). In finding that neither the attorney-client privilege nor the work-product doctrine protected the attorney billing records in their entirety, the Court wrote, Therefore, to be protected by the doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation. (<em>City Pages</em>, p. 846.)</p> <p>Here, the Commissioner has not seen the engineer's report. Therefore, she cannot determine, with certainty, whether the data in the report are attorney work product and, therefore, are excluded from the provisions of Chapter 13. However, if Mr. Strobbe is correct that the City provided a copy of the report to another entity, the Minnehaha Creek Watershed District, the City's argument that the report is attorney work product seems less plausible. Finally, the Commissioner notes that section 13.393 states, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Stobbe raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Commissioner cannot determine, with certainty, whether the City of Hopkins complied with Minnesota Statutes, Chapter 13, in refusing to provide a copy of the 2004 study of the Van Buren area drainage system.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 28, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677352666762663522022-01-19T19:23:29Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267337" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-12-14T16:14:43ZDid the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a data subject's request to review the test s/he took as part of the lieutenant's examination?December 14, 2005; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 2, 2005, IPAD received a letter dated November 1, 2005, from Ann Walther, an attorney representing the Police Officers' Federation of Minneapolis (POFM). In her letter, Ms. Walther asked the Commissioner to issue an advisory opinion regarding access to certain data from the City of Minneapolis.</p> <p>IPAD, on behalf of the Commissioner, wrote to Craig Steiner, the City's Data Practices Compliance Official, in response to Ms. Walther's request. The purposes of this letter, dated November 8, 2005, were to inform him of Ms. Walther's request and to ask him to provide information or support for the City's position. On November 18, 2005, IPAD received a response, dated same, from Mr. Steiner.</p> <p>A summary of the facts as provided by Ms. Walther is as follows. In her opinion request, she wrote:</p> <p class="opinion_quote">In May, 2005, the City of Minneapolis began civil service testing for the position of lieutenant. After the first phase of testing, several POFM members sought copies of their tests. By letter dated August 22, 2005, [Ms. Walther] requested of the Chief of Police that any employee who sat for the May 21, 2005, lieutenant's examination be provided with a copy of the test at his or her request.</p> <p>Ms. Walther provided to the Commissioner a copy of the City's response, dated September 1, 2005:</p> <p class="opinion_quote">we are unable to comply with your request. The City of Minneapolis is unable to provide this information. Under [Minnesota Statutes, section 13.34], the information requested is nonpublic. The responsible authority has determined that release of this information would compromise the objectivity, fairness, or integrity of the examination process.</p> <p>In an email dated October 6, 2005, one of the POFM members sent an email to the City regarding his previous September 27, 2005, request to review the lieutenant's test.</p> <p>The City responded in an email dated October 14, 2005:</p> <p class="opinion_quote">The City's position has not changed Under [section 13.34], the information is nonpublic. The responsible authority has determined that release of this information would compromise the objectivity, fairness, or integrity of the examination process.</p> <p>In an email dated October 18, 2005, Ms. Walther wrote to the City, is the City's position any different if the employees are seeking ACCESS to their examinations, rather than copies of their examination?</p> <p>The City responded, the City's position is not different either way.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Walther's opinion request, the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a data subject's request to review the test s/he took as part of the lieutenant's examination?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.04, individuals are entitled to gain access to data of which they are the subject. Generally, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>Section 13.34 states:</p> <p class="opinion_quote">Data consisting solely of testing or examination materials, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic, except pursuant to court order. Completed versions of personnel, licensing, or academic examinations shall be accessible to the individual who completed the examination, unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process. Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination.</p> <p>In her opinion request, Ms. Walther wrote:</p> <p class="opinion_quote">With respect to the completed lieutenant's tests, clearly [section 13.34] allows the individual POFM members to access (although not to copy) their examinations except if such access would compromise the objectivity, fairness, or integrity of the examination process. The City has relied upon this language to deny the individual POFM members access to their tests. Further, it is our position that the City is not entitled to claim that the integrity of the testing process would be compromised by access to the tests <em>now that the testing process has been completed</em>. To find otherwise would render [section 13.34] superfluous because a governmental entity could always claim that access to the tests could compromise the testing process, thereby effectively ensuring an employee could never see his or her test.</p> <p>In his comments to the Commissioner, Mr. Steiner wrote:</p> <p class="opinion_quote">The position of Lieutenant is a supervisory position. The written portion of the test is in a multiple-choice format. It is a situational, judgment test that has been validated specifically for law enforcement purposes.</p> <p class="opinion_quote">Each test question consists of a brief description of a police management situation that a Lieutenant is likely to face.In other words, the candidates are required to identify what is the best initial action and what is the worst initial action for each situation.</p> <p class="opinion_quote">Because of the breadth and scope of the Lieutenant's examination, combined with its specialized application to law enforcement, the test itself is not easy to create, let alone replicate on a repeated basis. Moreover, the cost associated with the test's development is expensive. Recreating the test every time a Lieutenant's position becomes open creates an undue financial hardship for an employer in the public sector.</p> <p class="opinion_quote">With respect to the completed Lieutenant's test, [section 13.34] provides an exception to the general rule that completed versions of the examinations shall be accessible to the individual who completed the examination. A close review of the statute reveals that the City need not disclose the requested data where the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process.</p> <p class="opinion_quote">POFM's final assertion is that since the testing process is now completed, the City is not entitled to claim that the integrity of the testing process would by compromised by access to the examination. Such a position, however, ignores the specific language of [Chapter 13] and necessitates a narrow interpretation of what constitutes the testing process. POFM is well aware that the examination process is ongoing. As the Department's ranks swell, so, too, does the number of Lieutenants. As such, the Department anticipates that additional testing will take place and desires to use some or all of the testing components at some time in the near future. Further, as noted above, the cost associated with the development of the Lieutenant's examination is expensive.</p> <p class="opinion_quote">Moreover, the individuals who seek access to the examination are the very same individuals who may apply for the new openings. Clearly, under these circumstances, it is not unreasonable for the responsible authority to determine that revealing the examination would compromise the objectivity, fairness, or integrity of the examination process.</p> <p>The Commissioner has the following comments. Section 13.34 essentially has two parts. The first part classifies data <em>solely consisting of testing or examination materials, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service</em>. Any of these data that would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic. In Chapter 13, a classification of nonpublic applies only to data that are not about an individual. Nonpublic data are not accessible to the public but are accessible to the subjects, if any. Thus, because Ms. Walther's clients are individuals, they cannot be the subjects of the testing or examination materials/scoring keys and the City is not required to provide them with any such data.</p> <p>The second part of section 13.34 discusses treatment of completed versions of examinations. An individual who has completed an examination can gain access to his/her completed exam unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process.</p> <p>Here, it is not clear whether Ms. Walther's client was asking to review the test questions or copies of his/her completed examination. Regardless, it appears the City responded appropriately. First, the test questions - themselves - are nonpublic data and not accessible to Ms. Walther's client(s). Second, Mr. Steiner makes valid arguments as to why allowing an individual who has taken the lieutenant's examination either to inspect or get a copy of his/her completed examination would compromise the objectivity/fairness/integrity of the testing process. Therefore, the City responded appropriately in denying Ms. Walther's clients access to the data.</p> <p>A final note is in order. In her opinion request, Ms. Walther objected to the fact that while the City denied access to the data based on section 13.34, the City has never explained how access by the individuals to their tests would compromise the testing process. It does not appear Ms. Walther made a data request for data documenting how the City reached its determination that objectivity/fairness/integrity would be compromised if it allowed access to the completed examinations. If she had, and the City has created and maintains such data, the City would have been required to provide the data, as they would be public.</p> <p>In his comments to the Commissioner, Mr. Steiner stated that section 13.34 does not require the City to explain its reasoning. This is correct. However, it appears Minnesota Statutes, section 15.17, the official records act, does require creation and retention of such data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Walther raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The City of Minneapolis complied with Minnesota Statutes, Chapter 13, in responding to a data subject's request to review the test s/he took as part of the lieutenant's examination.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 14, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673372669282022-01-19T19:23:29Z266258266279266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267636" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-30T16:14:43ZDid the City of Saint Paul comply with Minnesota Statutes, Chapter 13, regarding an August 11, 2005, request from the data subject for the following data: the complete record of the scoring for the B-PAD portion of the City's Fire Captain test?November 30, 2005; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History:</h2> <p>On September 26, 2005, IPAD received a letter dated same, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's right to gain access to certain data from the City of Saint Paul. IPAD, on behalf of the Commissioner, requested additional information and clarification, which IPAD received on October 13, 2005.</p> <p>IPAD, on behalf of the Commissioner, wrote to Shari Moore, Acting City Clerk, in response to X's request. The purposes of this letter, dated October 17, 2005, were to inform her of X's request and to ask her to provide information or support for the City's position. On October 28, 2005, IPAD received a response, dated same, from Gail Langfield, Assistant City Attorney.</p> <p>A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:</p> <p class="opinion_quote">The [Fire Captain test] was a three part test with each portion of the test accounting for a third of your final score. Part one was a written test, part two was a fire simulator, part three was the B-PAD test. The B-PAD test is designed to assess interpersonal competencies.</p> <p class="opinion_quote">After all three parts of the test were completed test candidates were allowed to review and contest both the written portion and the fire simulator portion of the test. Candidates were not allowed to review the B-PAD portion of the test. Scores did change after the review of the other parts of the test.</p> <p>(B-PAD is a private company. X did receive from the City a numerical score for the B-PAD portion of the Fire Captain test.)</p> <p>In a letter dated August 11, 2005, X wrote to the City and to B-PAD and asked for the complete record of my testing results for the B-PAD portion of the test.</p> <p>The City responded by sending X a copy of the letter it previously sent to X on January 15, 2004. The letter provides only the numerical score for the B-PAD portion of the test.</p> <p>B-PAD apparently did not respond to X.</p> <hr /> <h2>Issue:</h2> <p>Based on X's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, regarding an August 11, 2005, request from the data subject for the following data: the complete record of the scoring for the B-PAD portion of the City's Fire Captain test?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.04, an individual is entitled to gain access to data of which s/he is the subject. Generally, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>In his opinion request, X questioned why the City does not have data documenting the numerical results of the test score. X cited language in Minnesota Statutes, section 15.17, and wrote, I believe more information should have been generated. X further noted that it is difficult to challenge the accuracy and/or completeness of the numerical test score if there are no data that document how the City or B-PAD arrived at the numerical score.</p> <p>In her comments to the Commissioner, Ms. Langfield wrote:</p> <p class="opinion_quote">on January 15, 2004 the [City's] Office of Human Resources provided [X] with [X's] results Information provided about the B-PAD portion of the test was in the form of a numerical score.</p> <p class="opinion_quote">B-PAD is a video test during which the candidates what [sic] a series of professionally produced simulations. Candidates taking the B-PAD are placed before a video monitor. At a particular point in each scene the word respond appears on the monitor and the candidate is then given 45 seconds to respond verbally. A video camera which is placed next to the monitor records the candidate's responses for later scoring by trained raters. These raters assign a score in the form of a number.</p> <p class="opinion_quote">For the Fire Captain's exam, the City contracted with B-PAD to score the test and provide the City with results. The videotaped responses of the candidates were sent to B-PAD, and the City received a numerical score for each candidate. This is the information which was then provided [X].</p> <p class="opinion_quote">[X] alleges there must be more data available. However, the City has no additional information. The City does no [sic] have examination materials or scoring keys for this test. Scoring for this examination was done by the B-PAD company. Obviously, when rating the responses, B-PAD had criteria/scoring keys which it applied.</p> <p>The Commissioner notes that Ms. Langfield provided copies of two letters written by B-PAD staff. Prior to requesting this opinion, X was part of a group that filed a grievance and challenged group members' test results. Both letters apparently are related to the grievance. The February 2004, letter is addressed to the City's Human Resources department. In part, it states, It is the policy of The B-PAD Group, Inc. not to share test information with candidates. All test materials are copyrighted. Your city has also signed a test security agreement precluding you from divulging any test material.</p> <p>The November 2004, letter is addressed to the Saint Paul Civil Service Commission. In part, it states:</p> <p class="opinion_quote">The B-PAD Group, Inc. has data only in the form of numerical scores from the exam raters. We have never received individual performance evaluations or notes related to individuals' performance ratings used by the scorers of the B-PAD test.</p> <p class="opinion_quote">Any data that we have has already been sent to the City of Saint Paul.</p> <p>X provided to the Commissioner a copy of the conclusion the Civil Service Commission reached in June 2005:</p> <p class="opinion_quote">The lack of individual performance evaluations and notes related to the individual's performance ratings used by the scorers of the B-PAD test defeats the ability of employees to challenge their test results under Civil Service Rule 6E and the scoring methods should be reviewed.</p> <p>The Commissioner has the following comments. The first relates to the contractual relationship between the City and B-PAD. In her comments, Ms. Langfield wrote that the City contracted with B-PAD to score the test and provide the City with the results. She also stated that the videotaped responses of the candidates were sent to B-PAD.</p> <p>Chapter 13 provides that when a private person, such as B-PAD, contracts with a government entity, data related to the contract that are maintained by the private person may become subject to Chapter 13. Section 13.05, subdivision 11, states, in part:</p> <p class="opinion_quote">If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of [Chapter 13] and that the private person must comply with those requirements as if it were a government entity.</p> <p>In <em>WDSI, Inc. v. The County of Steele</em>, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required by section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:</p> <p class="opinion_quote">To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it.</p> <p>(See <em>WDSI</em>, p.622. Also see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>.)</p> <p>Here, the City did not provide the Commissioner with any contractual documents. X provided the Commissioner with a document entitled, <em>Limited Use Agreement</em>, signed by the City and B-PAD. This document does not contain the term required by section 13.05, subdivision 11. In addition, some of the provisions appear to be in violation of Chapter 13.</p> <p>Pursuant to section 13.05, subdivision 11, any data relating to the scoring of the results that B-PAD collected and created as part of its contractual agreement with the City are subject to the provisions of Chapter 13.</p> <p>The Commissioner's second comment regards Minnesota Statutes, section 15.17, the Official Records Act. In her comments to the Commissioner, Ms. Langfield asserts that the only data the City maintains in relation to the B-PAD portion of the captain's test is the numerical score, which the City has provided to X. However, pursuant to section 15.17, it appears the City should be maintaining data beyond the numerical score.</p> <p>Section 15.17 requires entities both to create and to keep official records, which must be kept for time periods as prescribed in the entity's record retention schedule (see Minnesota Statutes, section 138.17). Subdivision 1 of section 15.17 states, All officers of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Thus, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be accessible pursuant to Chapter 13.</p> <p>Here, it appears that data documenting how the City reached the numerical score of the B-PAD portion of X's exam constitute an official record, which the City should maintain. The fact that the City contracted with B-PAD to score the test does not negate the City's obligations under Chapter 13 and section 15.17. Further, because B-PAD is under contract to the City and it seems the scoring data are subject to Chapter 13 requirements, it is not appropriate for B-PAD to refuse access to those data.</p> <p>Finally, because the Commissioner does not know for certain what data were collected and created related to the scoring of the test, she cannot determine the classification of those data. Generally, pursuant to sections 13.04 and 13.43, X would be entitled to inspect or obtain copies of data of which s/he is the subject. However, if some of the data are examination data (see section 13.34), it is possible that the City could restrict access to those data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that X raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Saint Paul did not comply with Minnesota Statutes, Chapter 13, regarding an August 11, 2005, request from the data subject for the following data: the complete record of the scoring for the B-PAD portion of the City's Fire Captain test. Pursuant to Minnesota Statutes, section 15.17, the City should maintain additional data relating to the scoring of the test.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 30, 2005</p> <hr /></td> </tr> </tbody> </table> </div>2676362662802663732663322022-01-19T19:23:28Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267731" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-29T16:14:43ZDid MAC comply with Minnesota Statutes, Chapter 13, with regard to a January 16, 2005, request for access to data? Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a June 15, 2005, request for access to data? Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a September 7, 2005, request for access to data?November 29, 2005; Metropolitan Airports Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On October 10, 2005, IPAD received a letter from Vicki Pellar Price, on behalf of <em>Zero Expansion/talktrans</em>. In Ms. Pellar Price's letter, she asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data that the Metropolitan Airport Commission (MAC) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Thomas W. Anderson, General Counsel for MAC, in response to Ms. Pellar Price's request. The purposes of this letter, dated October 11, 2005, were to inform him of Ms. Pellar Price's request and to ask him to provide information or support for MAC's position. On October 20, 2005, IPAD received a response from Cameron Boyd, an attorney representing MAC.</p> <p>Ms. Pellar Price related her efforts, in connection with <em>Zero Expansion/talktrans</em>, to gain access to data related to a runway/hangar expansion and takeoff weight limitation changes at Flying Cloud Airport (FCM.)</p> <p>In a January 16, 2005, e-mail request to Bridget Rief, Airside Project Manager for MAC, Ms. Pellar Price requested the following:</p> <p class="opinion_quote">Please provide all documents, data, correspondences, including all written correspondences, research, meeting minutes, memorandums of phone surveys, any materials upon which the FEIS [Final Environmental Impact Statement] is based as a Data Practices Request (as you requested in your last e-mail dated 1-7-2005), which would identify who the operators (names) are that would require such a [sic] expensive expansion at FCM? Have they all signed agreements to base out of FCM? Show why other facilities, other relievers and MSP, are unable to handle these additional operators.</p> <p>In an e-mail dated January 28, 2005, Ms. Rief responded, [r]eceipt of message acknowledged. MAC is working on a response. Ms. Pellar Price e-mailed Ms. Rief on June 12, 2005, and stated that she still had not received a response. On June 14, 2005, Ms. Rief replied:</p> <p class="opinion_quote">The Metropolitan Airports Commission has received your latest e-mail and letter regarding the proposed expansion at the Flying Cloud Airport. MAC continues to prepare the Final EIS document, which will include responses to comments made during the last public comment period. The questions you have posed since then will be answered in the Final EIS document within those responses to comments. Prior to that, the information is not considered public information. At the time the final document is released, you will receive a response to these questions.</p> <p class="opinion_quote">While no specific date for completion is set, it is anticipated that the final EIS will be submitted to the FAA yet this year in 2005, possibly as early as the month of August.</p> <p>In a June 15, 2005, e-mail to Ms. Rief, Ms. Pellar Price repeated her January 16, 2005, request, and in addition requested the following:</p> <p class="opinion_quote">Please provide all documents, data, correspondences, including all written correspondences, research, meeting minutes, memorandums of phone surveys, any materials that will provide clear evidence that MAC will be able to uphold the 60,000 lb. pavement base weight limitation they committed to in the Final Agreement with the city of Eden Prairie.</p> <p>Ms. Rief responded, in an e-mail dated July 1, 2005, regarding Ms. Pellar Price's January request:</p> <p class="opinion_quote">The FEIS does not base the purpose and need for the project on specific operators who need the expansion. The purpose and need for the project is defined in Section II of the FEIS. . . .</p> <p class="opinion_quote">MAC is interpreting the remaining portions of your First Request as questions, and to the extent they were asked in the public comment period, they will be addressed in the Final EIS and Record of Decision.</p> <p>Regarding Ms. Pellar Price's June 15, 2005, request for data about weight limitations, Ms. Rief wrote:</p> <p class="opinion_quote">The attached letter [dated June 10, 2005, to Scott H. Neal, City Manager for the City of Eden Prairie] indicating MAC's intent regarding the Final Agreement with Eden Prairie was sent to the City earlier this month. Please note that 'clear evidence' is not producible by MAC. The FAA's position regarding the weight based restriction will be addressed in the Final EIS and Record of Decision.</p> <p>In an e-mail dated July 12, 2005, Laura L. Neuman, a <em>Zero Expansion/talktrans</em> associate of Ms. Pellar Price, wrote to Ms. Rief and reiterated Ms. Pellar Price's requests. Ms. Rief replied in a July 15, 2005, e-mail: MAC has received your letter dated July 12, 2005 and is currently preparing a response. We hope to send it out by the end of next week.</p> <p>Subsequently, Ms. Pellar Price and Ms. Neuman contacted IPAD staff. Throughout August, Laurie Beyer-Kropuenske, Director of IPAD, had multiple contacts with Mr. Boyd in an effort to assist MAC in responding to Ms. Pellar Price's requests.</p> <p>In a September 7, 2005, e-mail, Ms. Pellar Price submitted a clarifying request to MAC in which she requested the following:</p> <p class="opinion_quote">1. Survey questions and all responses to the April 1997 survey of FCM Fixed Base Operators conducted by/or for MAC.</p> <p class="opinion_quote">2. All data related to contact between Larry Dallam or other MAC employees/contractors in January 2004 with Elliott Aviation, Executive Aviation and any other aviation provider on their use of Flying Cloud Airport.</p> <p class="opinion_quote">3. All data documenting verbal, e-mail or written contact on the issue of operator needs at Flying Cloud Airport that has been conducted by MAC with operators since 1997.</p> <p class="opinion_quote">4.All data related to Ordinance 97 of December 17, 2002 and the issue of changing the takeoff weight limit from 20,000 lbs to less than 60,000.</p> <p class="opinion_quote">5.Draft copies and all data related to the drafting of the FEIS.</p> <p class="opinion_quote">6.Emails, correspondence, public comments submitted, on Flying Cloud expansion and alteration of the 60,000 takeoff weight limitations.</p> <p class="opinion_quote">7.All data that has been created, gathered or maintained in relation to preparation of the FEIS for Flying Cloud Airport.</p> <p>Mr. Boyd responded in a letter dated September 21, 2005, in which he asked Ms. Pellar Price for clarification of some of the data, and otherwise stated that MAC was currently working to assemble this data and that, for various reasons, it may take some time.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Ms. Pellar Price's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a January 16, 2005, request for access to data?</li> <li>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a June 15, 2005, request for access to data?</li> <li>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a September 7, 2005, request for access to data?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a January 16, 2005, request for access to data?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 3, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Subdivision 1 of section 13.03 provides that government entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>As earlier opinions have advised, when responding to data requests, government entities should provide prompt access to the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>In her June response to Ms. Pellar Price's January request, Ms. Rief stated that Ms. Pellar Price's questions will be answered in the Final EIS document within those responses to comments. Prior to that, the information is not considered public information. At the time the final document is released, you will receive a response to these questions.</p> <p>However, in his comments to the Commissioner, Mr. Boyd wrote:</p> <p class="opinion_quote">MAC interpreted this [January 16, 2005] request to seek only materials upon which the FEIS is based. Within that universe of documents, Ms. Pellar Price requested documents that would identify which operators at Flying Cloud Airport (FCM) would 'require such an expensive expansion.' MAC is not able to determine which operators would 'require' a specific plan, much less for which operators a less expensive expansion would not suffice. MAC has not collected, created, received, maintained or disseminated any documents that indicate which, if any, operators would require such an expensive expansion. Furthermore, any request that would force MAC to make guesses as to such determinations, and then provide a list thereof, is not a valid request under the Act.</p> <p class="opinion_quote">Additionally, the second sentence of the request is not a proper request under the Act because it does not identify any documents to be produced.</p> <p>Mr. Boyd made substantially similar comments in a letter to Ms. Neuman dated October 6, 2005. Thus, MAC did not state clearly that it did not have data responsive to part of Ms. Pellar Price's January 16, 2005 request, and that it did not consider another part of her request to be valid under Chapter 13 until October, 2005. MAC ought to have so informed Ms. Pellar Price promptly, upon receipt of her request.</p> <p>In addition, MAC's position that it has no data that are responsive to Ms. Pellar Price's is puzzling, given that in other public documents, MAC has described responses it received to surveys and described conducting additional telephone surveys in relation to this issue. Under section 15.17, subdivision 1, government entities have a duty to create records documenting their official activities.</p> <p>Furthermore, MAC denied Ms. Pellar Price access to a draft version of the EIS. Advisory Opinion <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267671" title="02-026" target="_blank">02-026</a> advises that draft versions of public data are public; Ms. Pellar Price raised that issue with MAC in July 2005.</p> <h2>Issue 2:</h2> <p><em>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a June 15, 2005, request for access to data?</em></p> <p>In his comments to the Commissioner Mr. Boyd wrote:</p> <p class="opinion_quote">MAC believes this is not a proper request under the Act. By phrasing the request in the manner she chose, Ms. Pellar Price has demanded that MAC provide a characterization of any produced data as clear evidence that MAC will be able to uphold the 60,000 lb. weight limitation. This determination would involve subjective interpretation and is therefore inappropriate and, furthermore, not within the scope of the Act. Aside from the practical difficulties in ascertaining which documents might be responsive to this subjective request, there are also policy reasons why it should be held invalid. While it is beyond dispute that the Act exists, in part, to allow citizens to acquire evidence against government action, the Act should not be used as a tool to force government entities to simultaneously provide characterizations of the strength of such evidence.</p> <p class="opinion_quote">Contrary to Ms. Pellar Price's subsequent assertions, this request does not ask MAC to produce all documentation related to this restriction. However, her subsequent assertions serve to exemplify Ms. Pellar Price's imprecision and confusion about what she has requested.</p> <p>Mr. Boyd made substantially similar comments in his October 6, 2005, letter to Ms. Neuman. The analysis of MAC's responses related to Issue 1 also applies to this request.</p> <p>The Commissioner has an additional comment. Ms. Pellar Price phrased her requests in a manner that allows them to be challenged, as Mr. Boyd did, as technically outside the scope of Chapter 13. However, from the record available to the Commissioner, it appears that MAC did not so inform Ms. Pellar Price until October 6, 2005 (in a letter to Ms. Neuman), after numerous contacts over many months. MAC reasonably could have worked with Ms. Pellar Price to clarify and identify the data she sought. MAC is unreasonable in asserting that the entire problem is the result of her phrasing, imprecision and confusion. MAC's Responsible Authority or Data Practices Compliance Official should have taken steps to resolve this conflict early in the process.</p> <h2>Issue 3:</h2> <p><em>Did MAC comply with Minnesota Statutes, Chapter 13, with regard to a September 7, 2005, request for access to data?</em></p> <p>In his comments to the Commissioner, Mr. Boyd wrote:</p> <p class="opinion_quote">Based on conversations with the Department of Administration and Ms. Pellar Price's apparent confusion over earlier requests, MAC decided to follow-up with Ms. Pellar Price to ensure that MAC accurately understood each of the requests, and to maximize efficiency. . . .</p> <p class="opinion_quote">MAC is currently working to gather the hundreds, if not thousands, of documents Ms. Pellar Price has requested. This process has been delayed somewhat due to plaintiffs' discovery requests in the class action Wiencke et. al v. Metropolitan Airports Comm'n, Court File No. 05-012976, before Judge Aldrich of the Minnesota State District Court, Hennepin County. I would be happy to provide a copy of the document requests from that action, if you wish. The document requests have required hundreds of hours of MAC employee time, and many of those employees are the same ones who must gather the documents for Ms. Pellar Price. Also adding to MAC's response time is the fact that, Mark Ryan, the former Airport Planner, who kept many of the documents Ms. Pellar Price seeks, passed away and another employee must search through his materials for responsive documents.</p> <p class="opinion_quote">In short, MAC has acted, and continues to act, in a reasonably timely manner with respect to this data request.</p> <p>As of October 10, 2005, MAC had not yet provided Ms. Pellar Price with any of the data she requested. Instead, in response to her September 7, 2005, request, MAC sought further clarification of some of the data she requested, and otherwise informed her that MAC was working to fulfill her request and would provide her with access as soon as possible. That approach does not meet the statutory mandate for a prompt response. MAC has been on notice since January 2005 that Ms. Pellar Price was seeking data. If MAC has not yet provided Ms. Pellar Price with access to all data responsive to her request then MAC should do so promptly.</p> <p>The Commissioner reminds her readers that pursuant to Minnesota Statutes, section 15.17, subdivision 1, [a]ll officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, [a]ccess to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13.</p> <p>As noted above, section 13.03 obligates government entities to keep records in such an arrangement so they are easily accessible for convenient use. To comply with this provision and to respond to data practices requests, entities need to have a general knowledge of what types of data they maintain and where those data are located. The Commissioner encourages MAC to work to correct related issues so MAC is able to respond appropriately to future data practices requests. As a final note, the Commissioner also encourages both data requestors and government entities to work cooperatively in cases like this.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Pellar Price raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>MAC did not comply with Minnesota Statutes, Chapter 13, with regard to a January 16, 2005, request for access to data.</li> <li>MAC did not comply with Minnesota Statutes, Chapter 13, with regard to a June 15, 2005, request for access to data.</li> <li>MAC did not comply with Minnesota Statutes, Chapter 13, with regard to a September 7, 2005, request for access to data.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 29, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677312666092666682022-01-19T19:23:28Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267291" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-18T16:15:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Labor and Industry maintains: the identity of an individual who complained about a Department employee? November 18, 2005; Minnesota Department of Labor and Industry36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On October 3, 2005, IPAD received a letter dated September 29, 2005, from Cynthia Valentine, Acting Director of Human Resources for the Minnesota Department of Labor and Industry. In her letter, Ms. Valentine asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Department maintains.</p> <p>On October 4, 2005, IPAD received a letter from an attorney representing X. In the letter, X's attorney asked the Commissioner to issue an opinion regarding X's access to certain data the Department maintains. (The data X seeks are the same data about which the Department asked the Commissioner to issue an opinion.)</p> <p>IPAD, on behalf of the Commissioner, accepted the Department's opinion request and invited X's attorney to submit comments in addition to those the attorney sent on October 4, 2005. IPAD received additional comments on October 20, 2005. IPAD also invited the individual who made a complaint about X to submit comments. IPAD received comments from the complainant on October 19, 2005.</p> <p>A summary of the facts as provided by the Department is as follows. Ms. Valentine wrote:</p> <p class="opinion_quote">Earlier this year, a complainant contacted the [Department] to [make a complaint about a Department employee].</p> <p class="opinion_quote">The [Department] initiated an investigation into this report. no disciplinary action was taken. In response to [X's] request for a copy of the investigation report, the [Department] gave [X] a summary report which did not disclose the identity of the complainant. [X] now has requested the [Department] to [sic] identify the name of the complainant</p> <p>Ms. Valentine wrote that the complainant alleged X was using his/her State position to intimidate and threaten the complainant and others to obtain a favorable outcome in a personal matter. Ms. Valentine wrote, If true, these allegations would constitute a conflict of interest in violation of Minn. Stat. section 43A.38 [code of ethics for employees in the executive branch].</p> <p>Ms. Valentine provided copies of various pieces of correspondence between the Department and X's attorney. In a letter dated August 3, 2005, the Department wrote to X's attorney denying access to the complainant's identity based on Minnesota Statutes, section 181.932, subdivision 2.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Valentine's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Labor and Industry maintains: the identity of an individual who complained about a Department employee?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Here, the Department has denied X access to the complainant's identity based on Minnesota Statutes, section 181.932. Of relevance, section 181.932, subdivision 1, clause (a) provides:</p> <p class="opinion_quote">An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:</p> <p class="opinion_quote">(a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;</p> <p>Subdivision 2, in relevant part, states:</p> <p class="opinion_quote">The identity of any employee making a report to a governmental body or law enforcement official under subdivision 1, clause (a) or (d), is private data on individuals as defined in section 13.02.</p> <p>Subdivision 3 states, This section does not permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth.</p> <p>In her opinion request, Ms. Valentine stated, Here, the complainant made a report of the violation of the state conflict of interest statute to the [Department], which is a governmental body. The complainant's identity therefore is private data and the [Department] is precluded from disclosing the complainant's identity to the requestor.</p> <p>Ms. Valentine also refuted several arguments X's attorney made in an August 12, 2005, letter:</p> <p class="opinion_quote">[X's attorney] argues that since pursuant to subdivision 3 [of section 181.932], an individual is not permitted knowingly to make false statements, and since, [X's attorney] alleges, the complainant's report was false, the complainant therefore should not enjoy the protections of confidentiality. While this argument may be an effective defense against a Whistleblower lawsuit, it does not destroy the classification of this data in the hands of the [Department] as private under [Chapter 13]. The [Department] has no evidence that complainant's report was knowingly false or in reckless disregard of the truth [sic] the [Department's] obligation is to maintain its private classification under [Chapter 13].</p> <p class="opinion_quote">[X's attorney] also argues that the classification of the identity of the complainant as private data violates the Minnesota Constitution, Article 1, section 8, which entitles every person to a remedy in the laws for all injuries and wrongs. [X] claims that because [X] is prevented from confronting [his/her] accuser, [X] is deprived of a remedy for the complainant's alleged defamation. Minn. Stat. section 181.932, subd. 2 does not violate this constitutional provision. [Chapter 13] sets forth a procedure to be followed for discovery of not public data in Minn. Stat. section 13.03, subd. 6. [X] may discover the information [X] seeks through court order if [X] meets the requirements of Minn. Stat. section 13.03, subd. 6.</p> <p class="opinion_quote">[X's attorney] argues additionally that Minn. Stat. section 181.932, subd. 2 does not apply since the Whistleblower statute prohibits actions of employers, and [X] is not an employer. According to the plain language of the statute, the Whistleblower Act does not limit its definition of report to reports of violations of law committed by employers. The Act protects the identity of individuals who report violations of law to a governmental body, without regard to whether the violator is an employer or another individual. The complainant in this case made a report of the violation of law to a governmental body. As such, as the recipient of that report, the [Department] must treat the complainant's identity as private data.</p> <p>The Commissioner agrees with Ms. Valentine's analysis. The complainant complained to the Department alleging X was using his/her State position to intimidate and threaten the complainant and others to obtain a favorable outcome in a personal matter - a violation of a state law. Pursuant to section 181.932, the identity of an individual making such a complaint is private and not accessible to X. If X wants access, s/he should bring an action under section 13.03, subdivision 6, or section 13.08.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Valentine raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 181.932, the following data that the Minnesota Department of Labor and Industry maintains are private: the identity of an individual who complained about a Department employee.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 18, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672912667092022-01-19T19:23:28Z266258266264266315266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267841" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-18T16:14:43ZDid the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a data request for contact information about city council candidates?November 18, 2005; City of Minneapolis36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <p><strong><em>Note: Minnesota Statutes, section 13.601, was further amended in 2008, after this opinion was issued. In the event that there is a conflict between the conclusion in the opinion and the statute, the later enacted statutory language governs.</em></strong></p> <h2>Facts and Procedural History:</h2> <p>On October 11, 2005, IPAD received a letter dated October 6, 2005, from Mark Anfinson, an attorney representing the <em>Northeaster</em> newspaper. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the City of Minneapolis.</p> <p>IPAD, on behalf of the Commissioner, wrote to Craig Steiner, the City's Data Practices Compliance Official, in response to Mr. Anfinson's request. The purposes of this letter, dated October 17, 2005, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. On October 27, 2005, IPAD received a response, dated same, from Mr. Steiner.</p> <p>A summary of the facts as provided by Mr. Anfinson is as follows. In his opinion request, Mr. Anfinson wrote:</p> <p class="opinion_quote">A <em>Northeaster</em> reporter recently called the Minneapolis elections office to obtain contact information for city council candidates. However, she was informed that state law limited the disclosure of some this information, including the candidates' addresses. This struck my client as peculiar, because in the past contact information for council candidates (specifically including addresses and phone numbers) had always been public. Futhermore, this type of information - especially the street address - is important because candidates are of course required to live in the ward they propose to represent, verification of which requires access to their addresses.</p> <p class="opinion_quote">Assistant City Attorney Jim Moore] explained that in the city's view, a 2005 amendment [Minnesota Statutes, section 13.601, subdivision 3] restricted the disclosure of contact information, including the addresses of candidates. The city attorney's office interpreted the new statute to mean that only the information about candidates specifically described in subdivision 3 is public; all other information is private. Indeed, Mr. Moore told my client that the city elections office was no longer collecting addresses from candidates when they filed for office.</p> <hr /> <h2>Issue:</h2> <p>Based on Mr. Anfinson's request for an opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, in responding to a data request for contact information about city council candidates?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Before proceeding, the Commissioner provides the following information. The 2005 Legislature enacted changes to provisions relating to data on individuals who are members of or applicants to advisory boards or commissions. Prior to August 1, 2005, certain data about these individuals were classified by Minnesota Statutes, section 13.43, personnel data. The effect of the changes enacted in the 2005 Session is that data about members of or applicants to advisory boards or commissions are classified by section 13.601 (data on elected and appointed officials), rather than section 13.43. The Legislature created a new subdivision, subdivision 3, under section 13.601, which became effective August 1, 2005. It states:</p> <p class="opinion_quote">The following data on all applicants for election or appointment to a public body, including those subject to chapter 13D, are public: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>In his comments to the Commissioner, Mr. Moore cited section 13.601, subdivision 3, and wrote:</p> <p class="opinion_quote">Notably, the candidate's or appointee's address is omitted from this list of public items in the statute. In responding to media requests, the City followed the plain language of the new statute, enacted in the 2005 legislative session. Indeed, in light of the new language, the City discontinued collection of address information from candidates for election. Unless candidates provided the City with the required Statement of Economic Interest form, the City itself obtained information from the State Voter Registration System if the City needed to contact the candidate. The City is, of course, required to both collect and disclose address information on the state-mandated Statement of Economic Interest, but stopped disclosing address information once it was determined that the address was not public regardless of how and where it was collected.</p> <p class="opinion_quote">Given the new statutory language, the logical presumption is that the legislature intended to delineate <em>only those specific terms</em> relating to candidates for elected office and appointed boards as public. As such, the City would appreciate guidance as to how to interpret this new statutory provision. It is clear, given that other municipalities have responded differently, that reasonable minds can come to differing conclusions as to whether addresses of candidates are to be considered public or private [Emphasis provided.]</p> <p>In his opinion request, Mr. Anfinson wrote:</p> <p class="opinion_quote">We believe that the interpretation apparently adopted by Minneapolis is contrary to both the express terms of the new statute and the intention of the Legislature in adopting it. Under [Chapter 13], of course, it is well established that all government data are presumptively public unless expressly classified otherwise. Correspondingly, where Chapter 13 itemizes data in a particular category that must be publicly disclosed, the itemization does not automatically mean that the Legislature intended all other information in the category to be not public data, unless that intention is expressly stated.</p> <p>The Commissioner agrees with Mr. Anfinson's analysis. Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.601, subdivision 3, provides that certain data are public - essentially, restating the general presumption. This does not mean that all other data on applicants for election or appointment to a public body are not public. Given the operation of Chapter 13, if the Legislature intended for all other data on applicants for election/appointment to be not public, the Legislature needed to enact a provision so stating.</p> <p>Thus, because there is no provision classifying contact information about city council candidates as private, they are public. If Minneapolis maintains the contact information, it is required to provide those data to the <em>Northeaster</em>.</p> <hr /> <h2>Opinion:</h2> <br /> Based on the facts and information provided, my opinion on the issue that Mr. Anfinson raised is as follows: <br /> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Assuming the City of Minneapolis maintains the requested contact information about city council candidates, the City did not comply with Minnesota Statutes, Chapter 13, and promptly should provide the data to the Northeaster.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 18, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678412667692666282667702022-01-19T19:23:27Z266258266315266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267371" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-17T16:14:43ZAre the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: a written report provided to a school district by a consultant? Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations?November 17, 2005; School District 273 (Edina)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 19, 2005, IPAD received a letter dated September 15, 2005, from Paul Ratwik and Jennifer Wolf, attorneys representing Independent School District 273, Edina. In their letter, Mr. Ratwik and Ms. Wolf asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains.</p> <p>A summary of the facts is as follows. In their opinion request, Mr. Ratwik and Ms. Miller wrote:</p> <p class="opinion_quote">The District requests an opinion on an issue that has arisen in connection with its search for a new superintendent. As part of its search for qualified applicants for employment, the District currently requires finalists for selected District vacancies, including the superintendent position, to undergo an assessment conducted by a private consulting firm. The assessment process is one tool used by the District to assess a candidate's compatibility with the District's needs and to predict whether a candidate will be successful in the relevant position.</p> <p class="opinion_quote">The consultant's assessments are grounded in organizational psychology and the science of measuring and assessing an applicant's personality and skills. The consultant uses a highly skilled but subjective method to assess a candidate's strength [sic] and weaknesses. The consultant does not rank the candidates or compare and contrast the candidate's [sic] against one another. Rather, the consultant conveys to the District its conclusions and recommendations about an applicant's strengths and weaknesses relating to the vacant position;.</p> <p class="opinion_quote">Following the analysis of information, the consultant provides a verbal report to the District of the perceived strengths and weaknesses of the candidate's professional capabilities in the context of the requirements of the vacant position. A written report also is provided to the District.</p> <p class="opinion_quote">The District treats the reports it received from the consultant as private data and has classified the reports as such in the past. However, the District is concerned that an argument could be made that the reports, either in whole or part, could be construed to constitute a relevant test score under Minn. Stat. section 13.43, subd. 3 and, therefore, perhaps constitute public information.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Mr. Ratwik and Ms. Wolf's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: a written report provided to a school district by a consultant?</li> <li>Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: a written report provided to a school district by a consultant?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Data about individuals who are employees of a government entity or who apply for employment with government entities are classified pursuant to section 13.43. For purposes of this opinion, the following data about all applicants are public: veteran status, relevant test scores, rank on eligible list; job history; education and training, and work availability. An applicant's name is not public until s/he becomes a finalist. (See section 13.43, subdivision 3.)</p> <p>In their opinion request, Mr. Ratwik and Ms. Wolf wrote,</p> <p class="opinion_quote">the reports do not constitute test scores as the term is commonly used.Typically when a term such as test score is used, it is to describe a numerical score generated thru the application of one of a battery of tests to obtain an objective result that will permit a comparison of one individual's achievements against another individuals [sic].</p> <p class="opinion_quote">In this case, the assessment reports do not yield an objective score. They are not used to provide a ranking of the applicants or compare one applicant's skills to another. Rather, the reports provide the District with a trained consultant's subjective interpretation of an applicant's perceived strengths and weaknesses in relation to a specific position with the District. Unlike an objective exam, there is no right or wrong answer during the assessments. Rather, these assessments are an additional tool used by the District to determine whether a candidate's professional style matches and/or is compatible with that of the District.</p> <p>As there is no definition in Chapter 13 of <em>relevant test score</em>, a reasonable interpretation of the plain meaning of the term is as follows: a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which an individual has applied. Given this definition, it does not seem that the results of an applicant's IQ test, Meyers-Briggs test, or other psychological/personality tests would be public data. The Commissioner believes this position is buttressed by the fact that if an employee of a government entity took an IQ or personality test, the results of the test would not be public under section 13.43. In other words, the Legislature's pattern has been to classify data of such a highly sensitive nature as private.</p> <p>The issue here is whether a written report comprising the consultant's conclusions and recommendations contains public data, specifically relevant test score data. Given Mr. Ratwik and Ms. Wolf's description of the report, it seems unlikely that the written report contains relevant test score data. Therefore, the data in the report are private personnel data pursuant to section 13.43.</p> <h2>Issue 2:</h2> <p><em>Are the following data classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations?</em></p> <p>In their opinion request, Mr. Ratwik and Ms. Wolf wrote:</p> <p class="opinion_quote">First, finalists respond to various assessment questionnaires. These questionnaires are designed to obtain information regarding the applicant's personality, professional background and capabilities and management style. For example, one of the questionnaires is a personality inventory. Another questionnaire requests detailed information about a candidate's prior professional experience.</p> <p class="opinion_quote">The candidates also participate in simulated exercises presenting real-life scenarios that the candidate may face if hired. The exercises consist of both written and interactive scenarios.</p> <p class="opinion_quote">Finally, the candidates may also take standardized tests which assess their intellectual capabilities.</p> <p>As discussed in Issue 1, an applicant's response is public if it is a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which the individual has applied. Also as discussed in Issue 1, the Commissioner does not believe that results from psychological/personality tests constitute relevant test scores.</p> <p>The Commissioner has not seen the questionnaires/assessment instruments/standardized tests; therefore, she can provide only limited guidance. If the scores are quantifiable and objective, and are a requirement of the applied-for job, the scores are public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Ratwik and Ms. Wolf raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>It seems unlikely that a written report provided to a school district by a consultant would contain public data pursuant to Minnesota Statutes, section 13.43, subdivision 3.</li> <li>The following data are classified as public pursuant to Minnesota Statutes, section 13.43, subdivision 3, if they constitute a quantifiable, objective, as opposed to subjective, score from an evaluation/test that is a requirement of the job for which an individual has applied: responses by an applicant to questionnaires and assessment instruments analyzing the strengths and weaknesses for an applicant for a position of employment used by the consultant to reach his/her conclusions and make his/her recommendations.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 17, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673712665222665453607962022-01-19T19:23:26Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267459" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-11-09T16:14:43ZDid the Lake Superior Center comply with Minnesota Statutes, Chapter 13, in regard to an August 16, 2005, request for government data?November 9, 2005; Lake Superior Center36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History: <br /></h2> <p>On September 22, 2005, IPAD received a letter dated September 20, 2005, from Peter Rebhahn of the <em>Duluth News Tribune</em>. In his letter, Mr. Rebhahn asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Lake Superior Center, a Minnesota nonprofit corporation, maintains. The Center contracts with the Lake Superior Center Authority to operate the Great Lakes Aquarium. The Authority is a government entity subject to the requirements of Minnesota Statutes, Chapter 13.</p> <p>IPAD, on behalf of the Commissioner, wrote to Patrick Schoff, Center chair, in response to Mr. Rebhahn's request. The purposes of this letter, dated September 23, 2005, were to inform him of Mr. Rebhahn's request and to ask him to provide information or support for the Center's position. On October 13, 2005, IPAD received a response, dated same, from Harold Frederick, an attorney representing the Center.</p> <p>IPAD also invited Elaine Hansen, Chair of the Authority to submit comments. On October 14, 2005, IPAD received comments dated October 13, 2005, from Mark Pilon, an attorney representing the Authority.</p> <p>A summary of the facts as Mr. Rebhahn provided them is as follows. In a letter dated July 15, 2005, Mr. Rebhahn wrote to Ms. Hansen and</p> <p>asked for the following data relating to the Office of the State Auditor's report on the Center and the Authority for years 2003 and 2004:</p> <ul> <li>The names and addresses of all creditors subsumed under the Liabilities heading</li> <li>The amount each of the above creditors is owed by either the [Center] or the [Authority]</li> <li>The repayment terms for all the debts owed the above creditors</li> <li>The product or service each creditor provided to either the [Center] or the [Authority].</li> </ul> In a letter dated August 15, 2005, Mr. Pilon responded: <p class="opinion_quote">As these inquiries relate to the [Authority] and its records, they have been answered previously. The Authority's financial statements and audit report notes have been provided and described to you by Ms. Hansen.</p> <p class="opinion_quote">While postured as a [Chapter 13] request, your inquiry clearly encompasses information relating to the [Center]. The [Center], a separate entity, can respond only on its own behalf, and your requests as they relate to the [Center] must be taken up separately with that entity.</p> <p>In a letter dated August 16, 2005, Mr. Rebhahn wrote to Mr. Schoff, Center chair, and asked for the same data he requested of the Authority.</p> <p>To his opinion request, Mr. Rebhahn attached a copy of the Management Agreement between the Center and the Authority, dated November 8, 1998. Mr. Rebhahn also attached a copy of the Great Lakes Aquarium Amended and Restated Operating Revenue Participation Agreement, adopted on March 15, 2004.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Rebhahn's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Lake Superior Center comply with Minnesota Statutes, Chapter 13, in regard to an August 16, 2005, request for government data?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Before proceeding, it should be noted that in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267521" title="01-044" target="_blank">Advisory Opinion 01-044</a>, the Commissioner opined that the Center was not subject to the requirements of Minnesota Statutes, Chapter 13. The Commissioner reached this conclusion for two reasons. One was that none of the provisions in Chapter 13 that subject non-government entities to Chapter 13 applied. The second was that the November 1998 Management Agreement (1998 Management Agreement) did not contain any language specifically subjecting the Center or any of its data to Chapter 13.</p> <p>The Commissioner now is revisiting the issue because of information Mr. Rebhahn provided regarding a subsequent contract that the Center and the Authority entered into, the Great Lakes Aquarium Amended and Restated Operating Revenue Participation Agreement, adopted on March 15, 2004 (2004 Agreement).</p> <p>Minnesota Statutes, Chapter 13, regulates data collected, created, and maintained by government entities. Section 13.02, subdivision 7a, defines government entity as a state agency, political subdivision, or statewide system.</p> <p>The Center is a not a state agency, political subdivision, or statewide system and, therefore, is not subject to the requirements of Chapter 13. However, Chapter 13 provides that when a private person, such as the Center, contracts with a government entity, data related to the contract that are maintained by the private person may become subject to Chapter 13. Section 13.05, subdivision 11, states:</p> <p class="opinion_quote">(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.</p> <p class="opinion_quote">(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.</p> <p>Section 13.05, subdivision 11, became effective on August 1, 1999.</p> <p>In his comments to the Commissioner, Mr. Pilon wrote:</p> <p class="opinion_quote">It has been suggested that [the 2004 Agreement] has supplemented or taken the place of the [1998 Management Agreement], and that [section 13.05, subdivision 11], passed after the [1998 Management Agreement] was signed, therefore brings the Center within the scope of [Chapter 13].</p> <p class="opinion_quote">However, the [2004 Agreement] does not supplant the [1998 Management Agreement]. Instead, it merely amends and restates an entirely separate document, an original Operating and Revenue Participation Agreement signed in December of 1998 [1998 Operating and Revenue Agreement].</p> <p>Mr. Frederick's comments echo those of Mr. Pilon.</p> <p>The Commissioner's analysis is as follows. The 1998 Management Agreement between the Center and the Authority provides that the Center will manage the Great Lakes Aquarium. The terms of this agreement extend to December 31, 2003. Article IV, Section 4.03, <em>Obligation of Center to the City and DEDA</em> [Duluth Economic Development Authority] provides that both the Center and the Authority agree to be subject to and comply with the provisions of the Duluth agreements.</p> <p>Pursuant to Article I, Section 1.01, <em>Definitions</em>, the Duluth agreements are defined as the one or more contracts which may be entered into by and among one or more of the Authority, the Center, DEDA and the City, or any combination of the foregoing, pursuant to which financial assistance is provided to the Project. The Project is defined as the Land, the Building and the Improvements [of the Great Lakes Aquarium].</p> <p>Although the 2004 Agreement may not supplant the 1998 Management Agreement, it appears to be a Duluth agreement that, at the very least, modifies the 1998 Management Agreement, as well as the 1998 Operating and Revenue Agreement. For example, Number 3 of the 2004 Agreement discusses the relationship of the Center and the Authority:</p> <p class="opinion_quote">It is understood between the parties hereto that while it is the intent of [the Center] and Authority that Authority will be primarily responsible for the construction of the Project and [the Center] will be primarily responsible for the operation of the Project, in the event that for any reason [the Center] or the Authority cease to exist, cease to have an interest in the Project or become, for any reason, disabled from being or not involved in the construction or operation of the Project or both, the other of [the Center] or Authority remaining involved shall be obligated to perform all of the obligations of both of said parties under this Agreement. It is contemplated that [the Center] may, with the consent of the Authority, and the written consent of the Mayor of the City of Duluth, enter into a management or operating agreement with a third party organization to manage the Project, subject to the terms hereof and those imposed by or agreed to with the State of Minnesota.</p> <p>In addition, Number 12 of the 2004 Agreement discusses the Center's operating covenant. The provision discusses various items related to operating and maintaining the aquarium building: maintenance, utilities, licenses and permits, payment of taxes, assessment fees and charges, obligations and claims, charitable purposes, revenue generation, and exclusive operation.</p> <p>By describing the relationship between the Center and the Authority, and how the Center will operate the Aquarium on behalf of all who are involved, it appears that the 2004 Agreement modifies the 1998 Management Agreement. Therefore, the 2004 Agreement should contain the language required in section 13.05, subdivision 11. The contract does not contain any such language.</p> <p>In <em>WDSI, Inc. v. The County of Steele</em>, 672 N.W.2d 617 (Minn.App. 2003), the Court discussed a situation in which a contract between a private person and Steele County did not contain the language required in section 13.05, subdivision 11. The Court held that the District Court's decision to not infer the language was in error:</p> <p class="opinion_quote">To accept WDSI's argument and the district court's reasoning would be to simply ignore the mandate of the statute. Although the mandate was not expressly reflected in the contract, it applies nevertheless, and neither contracting parties nor courts can simply ignore it.</p> <p>(See <em>WDSI</em>, p.622. Also see <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>.)</p> <p>Because section 13.05, subdivision 11, now applies to data the Center collects, creates, and maintains related to its contract with the Authority, the Center is required to respond to Mr. Rebhahn's request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Rebhahn raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">By virtue of the 2004 Agreement, certain data the Center collects, creates, and maintains are subject to Chapter 13. Although provisions to that effect should have been included in the Agreement, their absence does not negate the Center's obligations under Chapter 13. Thus, the Center's data that relate to the contract are public unless classified otherwise.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 9, 2005</p> <hr /></td> </tr> </tbody> </table> </div>2674592662802666422666652022-01-19T19:23:26Z266258266279266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267558" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-10-27T15:14:43ZWhen the Minnesota Partnership for Action Against Tobacco (MPAAT) commissions another person or entity to perform a research study, and MPAAT thereafter receives and makes a public report from that person or entity which presents the results of the research study, what is the status under Minnesota Statutes, Chapter 13, of the underlying raw data collected by the researchers in the course of conducting the study?October 27, 2005; Minnesota Partnership for Action Against Tobacco36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong> <br /></p> <h2>Facts and Procedural History:</h2> <p>On September 21, 2005, IPAD received a letter dated September 19, 2005, from Laurie Miller, an attorney representing the Minnesota Partnership for Action Against Tobacco (MPAAT). In her letter, Ms. Miller asked the Commissioner to issue an advisory opinion regarding the classification of certain data that MPAAT maintains. IPAD required additional information, which Ms. Miller provided on September 26 and 28.</p> <p>A summary of the facts is as follows. In her opinion request, Ms. Miller wrote:</p> <p class="opinion_quote">I represent [MPAAT], an independent, non-profit organization that seeks to improve the health of Minnesotans by reducing the harm caused by tobacco. MPAAT was created and funded by three percent of the settlement of the State of Minnesota's litigation against tobacco companies. MPAAT has asked me to request an advisory opinion of the Commissioner.</p> <p class="opinion_quote">While MPAAT is not a state agency, the Ramsey County District Court, which administers the settlement of the State's tobacco litigation, issued an Order on December 30, 2002 that makes applicable to MPAAT the provisions of the Data Practices Act. The basis of the Order was the Court's finding that MPAAT would benefit from the additional public accountability imposed by the Data Practices Act - not that MPAAT was a state agency or other entity subject to state data practices requirements. While the Court's Order does not address all aspects of MPAAT's relationship to the Data Practices Act, MPAAT's working assumption is that to the extent possible, MPAAT must conduct itself as though it were fully subject to the Data Practices Act.</p> <p class="opinion_quote">MPAAT enters into contracts with a variety of other organizations to conduct specific research projects. When each research project is completed, the researcher provides a report to MPAAT, presenting the research results. MPAAT typically publicizes the results of the research projects it commissions through a variety of means MPAAT does not, however, typically release to the public all of the raw data underlying each research project.</p> <p class="opinion_quote">The question posed by this letter arises when, after release of a research study report, MPAAT receives a request under [Chapter 13] for production of raw data underlying the report. While the report itself may clearly be public data, can the underlying raw data, which is not typically released, have a more protected status?</p> <p class="opinion_quote">As an example, MPAAT recently commissioned a research project to study the effects of the smoking bans enacted this year in both Hennepin and Ramsey Counties. The Minnesota Institute for Public Health and the Center for Energy and the Environment conducted the study with funding from MPAAT. The study consisted of measuring the air quality at 25 bars and restaurants in Hennepin, Ramsey, and Dakota counties, both before and after the enactment of the smoking bans, to learn what impact the bans had on air quality. The research results were presented in a report, which MPAAT released to the public. The report did not disclose the names of the 25 bars and restaurants where the air quality monitoring was conducted. After the report was made public, however, MPAAT received a [Chapter 13] request for the raw data underlying the report, including the identification of the 25 bars and restaurants that were studied.</p> <p class="opinion_quote">The underlying raw research data, including the names of the 25 establishments, to the extent it was not included in the final study report, is an example of the kind of raw research for which MPAAT seeks the Commissioner's advisory opinion</p> <br /> <h2>Issue:</h2> <p>Based on Ms. Miller's request for an opinion, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">When the Minnesota Partnership for Action Against Tobacco (MPAAT) commissions another person or entity to perform a research study, and MPAAT thereafter receives and makes a public report from that person or entity which presents the results of the research study, what is the status under Minnesota Statutes, Chapter 13, of the underlying raw data collected by the researchers in the course of conducting the study?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Before proceeding, it must be determined whether MPAAT is subject to Minnesota Statutes, Chapter 13. Chapter 13 regulates data collected by government entities. Section 13.02, subdivision 7a, defines government entity as a state agency, political subdivision, or statewide system.</p> <p>MPAAT is not a state agency, political subdivision, or statewide system. However, based on an order of the Ramsey County District Court, MPAAT apparently is subject to the requirements of Chapter 13. In the December 30, 2002, Order, the Court held, The Star Tribune's motion to subject MPAAT to and require its compliance with the Minnesota Open Meeting Law, Minn. Stat. section13D.01 et seq. and [Chapter 13], Minn. Stat. section 13.01 et seq. is GRANTED.</p> <p>The Court wrote:</p> <p class="opinion_quote">It is not necessary to determine whether or not [Chapter 13D] and [Chapter 13] apply to MPAAT's operations because of the single funding source, i.e., the tobacco settlement funds channeled to MPAAT by the legislature.</p> <p class="opinion_quote">It is sufficient to say that the court's continuing jurisdiction allows the court the discretion to make applicable the requirements of [Chapter 13D] and [Chapter 13] simply because MPAAT's compliance with the requirements of each of those chapters will benefit the primary ends for which MPAAT was created.</p> <p>(See <em>State of Minnesota and Blue Cross Blue Shield of Minnesota v. Philip Morris, Incorporated, et al</em>, Court File No. C1-94-8565 (Second Judicial District Ramsey County State of Minnesota).)</p> <p>Thus, by virtue of this court order, data MPAAT collects, creates, and maintains are subject to Chapter 13. In addition, the Commissioner assumes data collected, created, and maintained by MPAAT's contractors also are subject to the requirements of Chapter 13. (See section 13.05, subdivision 11.)</p> <p>Ms. Miller asked the Commissioner to discuss the classification of underlying raw data researchers collect as they conduct various studies on behalf of MPAAT.</p> <p>Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. Generally, there is no provision in Chapter 13 that specifically classifies raw or underlying research data as anything other than public. Without knowing precisely the types of data MPAAT researchers collect, the Commissioner can respond only in terms of generalities.</p> <p>If there is no provision in Chapter 13, another Minnesota statute, or federal law, that classifies the research data in question as private, nonpublic, confidential, or protected nonpublic, MPAAT must release the data upon request. If, however, certain provisions of law classify the data as not public, MPAAT cannot release them. In analyzing the classification of the research data, MPAAT must keep in mind that Chapter 13 classifies individual data elements, as opposed to documents. Thus, it is possible for a single document to contain data of differing classifications.</p> <p>Finally, it should be noted that Ms. Miller stated that MPAAT and its researchers maintain the names of the 25 bars and restaurants studied as part of a recent research project. The Commissioner is not aware of any provision in Chapter 13 that classifies those data as anything other than public.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Miller raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">When the Minnesota Partnership for Action Against Tobacco (MPAAT) commissions another person or entity to perform a research study, and MPAAT thereafter receives and makes a public report from that person or entity which presents the results of the research study, the underlying raw data, whether in MPAAT's possession or that of its contractors, are public unless the data are classified by law as not public.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 27, 2005</p> <hr /> </td> </tr> </tbody> </table> </div>2675582667272667282022-01-19T19:23:25Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267722" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-10-25T15:15:43ZHas the City of Grand Marais complied with Minnesota Statutes, Chapter 13, in regard to a September 1, 2005, request for data relating to a conservation easement?October 25, 2005; City of Grand Marais36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 26, 2005, IPAD received a letter dated September 24, 2005, from Molly Hoffman, on behalf of Harbor Friends, a non-profit organization. In her letter, Ms. Hoffman asked the Commissioner to issue an advisory opinion regarding the organization's right to gain access to certain data that the City of Grand Marais maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Michael Roth, City Clerk, in response to Ms. Hoffman's request. The purposes of this letter, dated September 26, 2005, were to inform him of Ms. Hoffman's request and to ask him to provide information or support for the City's position. On October 7, 2005, IPAD received a response, dated October 4, 2005, from Mr. Roth.</p> <p>A summary of the facts as provided by Ms. Hoffman is as follows. To her opinion request, Ms. Hoffman attached a copy of a data request John Haluska made on behalf of Harbor Friends. Of relevance to this opinion, Mr. Haluska asked for the following data on September 1, 2005:</p> <p class="opinion_quote">During the course of entering into the conservation easement relating to the area surrounding the harbor in Grand Marais, notes, documents, photos, maps, files, document logs, phone logs, and other materials were produced relevant to the matter of the easement and negotiations with the Minnesota Land Trust.</p> <p class="opinion_quote">Please provide a list of all such materials.</p> <p class="opinion_quote">Included with these documents reportedly was a spiral notebook. It is reported to have been recently in the possession of the city administration staff. Please provide a copy of this notebook.</p> <p>In her opinion request, Ms. Hoffman wrote:</p> <p class="opinion_quote">The city did not provide a written response. The City Administrator Mike Roth told Mr. Haluska that the supporting documentation for the Conservation Easement did not exist in city files and that there was no spiral notebook, that it was a 3-ring binder and that it wasn't in the city files either.</p> <p class="opinion_quote">Contacts with past and present city officials confirm that the Conservation Easement materials we had requested are in city files. Last week City Attorney Donald Davidson confirmed that the 3-ring binder and additional documents are in city files. City Administrator Mike Roth, as recently as September 9, 2005, continued to deny that the 3-ring binder or any other of the requested documents related to the Conservation Easement were in city files.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Hoffman's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Has the City of Grand Marais complied with Minnesota Statutes, Chapter 13, in regard to a September 1, 2005, request for data relating to a conservation easement?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 3, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>Finally, section subdivision 1 of section 13.03 provides that government entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>In his comments to the Commissioner, Mr. Roth wrote:</p> <p class="opinion_quote">In regards to [Mr. Haluska's] request, there is no such list of materials. Also, he referenced someone reporting a spiral notebook recently in the possession of the City Administration staff, presumably me. There is no such spiral notebook. I thought he might be referring to the property report that was to be included with the Conservation Easement. I was unaware of its existence at the time. I had previously discussed this property report with my Park Director. In 2001, we had met with Minnesota Land Trust staff that were preparing a detailed property report. We were shown a draft of the report but never provided with a copy. I informed both Ms. Hoffman and Mr. Haluska of this situation.</p> <p class="opinion_quote">On Tuesday, September 20, I received an email from the City Attorney notifying me of the existence and location of documents relating to the Conservation Easement, including the property report. He had informed Mr. Haluska of the existence of the materials on Friday, September 16. The City Attorney indicated to me that Mr. Haluska would be coming to City Hall to view these documents. As of today, Mr. Haluska has not stopped by.</p> <p class="opinion_quote">It is my determination that all of the files that were recently located in regards to the Conservation Easement are public. Mr. Haluska and Ms. Hoffman may examine them in my office and request copies of any or all of the information. It is clear in Ms. Hoffman's letter that the spiral notebook in Mr. Haluska's request is indeed the property report in my possession, so a copy will be forwarded to them immediately.</p> <p>Mr. Roth provided a copy of the September 20 email he received from attorney Donald Davidson. In part, Mr. Davidson wrote, There is a large amount of historical data concerning the conservation easement in the vault, as well as the property condition report, mainly a photographic record of the property as it existed in '96 - '97. John [Mr. Haluska] said none of this information was provided to him.</p> <p>On September 1, 2005, Mr. Haluska asked for a list of certain documents relating to the conservation easement. He also asked for a copy of a related spiral notebook. Regarding the request for a list, Mr. Roth replied that the City did not have a list. If the City does not maintain a list, it is not required to create one to respond to Mr. Haluska's data request.</p> <p>Regarding the request for the spiral notebook/3-ring binder, the Commissioner has the following comments. As stated in previously issued opinions, when government entities respond to data practices requests they should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist. Here, Mr. Roth first advised Mr. Haluska that the notebook did not exist in City files. Sometime thereafter, the City Attorney advised Mr. Roth that certain data relating to the conservation easement did exist and that those data were in the vault. Apparently, the City then informed Mr. Haluska of the situation.</p> <p>Pursuant to section 13.03, government entities are obligated to keep records in such an arrangement so they are easily accessible for convenient use. To comply with this provision and to respond to data practices requests, entities need to have a general knowledge of what types of data they maintain and where those data likely are located. Here, it appears Mr. Roth, the City's responsible authority, was not aware that data responsive to Mr. Haluska's request were in the vault. It is not clear why Mr. Roth did not know about the data in the vault but the Commissioner encourages the City to work to correct related issues so the City can respond appropriately to future data practices requests. If Mr. Haluska has not yet been given a copy of the notebook/binder, the City should do so promptly.</p> <p>As a final note, the Commissioner encourages data requestors to ask for specific data rather than asking for documents. Here, it would have been clearer if Mr. Haluska had asked for the data he believed to be in the spiral notebook, as opposed to asking for a copy of the notebook, itself. The ensuing discussion then would have revolved around whether the data did or did not exist, rather than specifics about the type of notebook.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Hoffman raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Regarding a September 1, 2005, request for a copy of list of data relating to a conservation easement, the City of Grand Marais' response complied with Minnesota Statutes, Chapter 13. Regarding a September 1, 2005, request for a notebook relating to the easement, the City's response was not appropriate; therefore, the City did not comply with Chapter 13. <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 25, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677222665382665502022-01-19T19:23:25Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267819" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-10-25T15:14:43ZDid the City of Moorhead comply with Minnesota Statutes, Chapter 13, in denying access to a request for a transcript of a 911 call?October 25, 2005; City of Moorhead36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 23, 2005, IPAD received a letter dated September 16, 2005, from Steven Wagner, of The Forum of Fargo-Moorhead. In his letter, Mr. Wagner asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the City of Moorhead maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Bruce Messelt, City Manager, in response to Mr. Wagner's request. The purposes of this letter, dated September 26, 2005, were to inform him of Mr. Wagner's request and to ask him to provide information or support for the City's position. On October 13, 2005, IPAD received a response, dated October 11, 2005, from Brian Neugebauer, an attorney representing the City.</p> <p>A summary of the facts as Mr. Wagner provided them is as follows. In a letter dated August 16, 2005, Mr. Wagner requested data from the City regarding an August 16 incident involving an alleged killing at a hotel. Police had responded to a 911 call. Of relevance here, Mr. Wagner wrote:</p> <p class="opinion_quote">Please consider this a formal request under the state's Data Practice laws for access to all public information.</p> <p class="opinion_quote">We are also requesting a transcript of the 911 call relating to this incident, as provided in Minnesota Statute 13.82, subdivision 4. The law says a transcript of the call shall be prepared upon request.</p> <p>On August 22, 2005, the City responded via a memorandum prepared by an assistant Clay County attorney. The attorney wrote:</p> <p class="opinion_quote">In considering the Forum's request for a transcript of the 911 call relative to this incident, it is my opinion that release of that information should be denied. Such information is currently classified as confidential or protected nonpublic data, Minn.Stat. section 13.82, Subd. 7, as it is active investigative data, which has been collected or created by the Moorhead Police Department in order to prepare a case against a person for the commission of a crime. The Moorhead Police Department currently maintains the primary investigative responsibility for the incident.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Wagner's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Moorhead comply with Minnesota Statutes, Chapter 13, in denying access to a request for a transcript of a 911 call?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified.</p> <p>Data that law enforcement agencies collect, create, and maintain are classified pursuant to section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events.</p> <p>Subdivision 4 of section 13.82, in relevant part, states:</p> <p class="opinion_quote">The audio recording of a call placed to a 911 system for the purpose of requesting service from a law enforcement, fire, or medical agency is private data on individuals with respect to the individual making the call, except that a written transcript of the audio recording is public, unless it reveals the identity of an individual otherwise protected under subdivision 17. A transcript shall be prepared upon request.</p> <p>In his comments to the Commissioner, Mr. Neugebauer wrote:</p> <p class="opinion_quote">Although Minn. Stat. section 13.82, subdivision 4 makes available the transcript of calls for service placed to a 911 system, it is inapplicable in the instant case. Subdivision 4 is inapplicable because the call in the instant case involves evidence of a crime and has been collected by the Moorhead Police Department as part of its active investigation of [the caller] and it is not merely a call for service. Subdivision 7 [of section 13.82] makes confidential information concerning active investigations and specifically does not exempt subdivision 4 from its broad protection for investigative information.This interpretation is consistent with the practical needs of law enforcement agencies and prosecutors not to release transcripts of 911 calls that involve evidence of criminal activity that will be utilized to prosecute the individual making the call.</p> <p>The Commissioner disagrees, having opined on a similar issue in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267631" title="01-050" target="_blank">Advisory Opinion 01-050</a>:</p> <p class="opinion_quote">Ms. Rofuth also argued that the caller's identity and the 911 transcript are not public because they are criminal investigative data pursuant to section 13.82, subdivision 7. The Commissioner respectfully disagrees. As discussed above, arrest, request for service, and response or incident data, including the name and address of the individual making the request, are always public. Subdivision 7 provides: [e]xcept for the data defined in subdivisions 2, 3, and 6, investigative data . . . is confidential or protected nonpublic while the investigation is active. Accordingly, the identity of an individual making a request for service is public under subdivision 6. A law enforcement agency is not obligated to disclose to the public that the individual is also a suspect. See also Advisory Opinion 00-078 in which the Commissioner addressed a similar issue.</p> <p class="opinion_quote">As discussed above, Ms. Rofuth did not demonstrate that, in this case, the caller's identity qualifies for protection under subdivision 17. Therefore, the transcript is public data. It is the Commissioner's opinion that the transcript cannot be protected under subdivision 7 as criminal investigative data because it is not data that the Department collected or prepared in order to prepare a case against the caller. Rather, a call of this nature to a 911 center is a type of request for service data.</p> <p>Subdivision 7 of section 13.82 temporarily protects <em>data collected or created by a law enforcement agency in order to prepare a case against a person</em>. Thus, because the August 16, 2005, call placed to the 911 center is not data the City collected or created to prepare a case against an individual, it is not appropriate for the City to use subdivision 7 to deny access to the data. Further, section 13.82, subdivision 17, allows an entity to withhold certain public data if the data reveal the identity of an individual protected under subdivision 17. Mr. Neugebauer did not assert that the caller's identity should be protected under subdivision 17. The City promptly should release a copy of the transcript to Mr. Wagner.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Wagner raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Moorhead did not comply with Minnesota Statutes, Chapter 13, in denying access to a request for a transcript of a 911 call. <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 25, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678192664612664112022-01-19T19:23:25Z266258266271266296266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267353" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-10-04T15:14:43ZDid the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to a September 20, 2004, request to inspect the annual audits for the past five years?October 4, 2005; Red River Watershed Management Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On August 29, 2005, IPAD received a letter dated August 25, 2005, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the Red River Watershed Management Board maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, the Board's Data Practices Compliance Official, in response to Mr. Stengrim's request. The purposes of this letter, dated September 2, 2005, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the Board's position. On September 16, 2005, IPAD received a response, dated same, from Louis Smith, an attorney representing the Board.</p> <p>A summary of the facts as provided by Mr. Stengrim is as follows. In a letter dated September 20, 2004, Mr. Stengrim wrote to Ms. Erickson and asked to inspect various government data. Of relevance to this opinion is Item 3 of his request for, Past five years annual audits.</p> <p>In his opinion request, Mr. Stengrim wrote, A meeting was scheduled for September 30, 2004 to inspect the requested data. Upon arriving for the meeting, the [Board] representatives handed [sic] a letter dated September 30, 2004, from Mr. Smith, their attorney.</p> <p>In the September 30, letter, Mr. Smith stated, In response to your request of September 20, all of the data referred to in Items 1-13 have been produced for your inspection.</p> <p>In his opinion request, Mr. Stengrim wrote, Copies were made of the documents presented as annual audits. Since time was an issue a careful review of the documents was not conducted until later. It was discovered that they were not annual audits.</p> <p>In a letter dated December 2, 2004, Mr. Stengrim wrote to the Board, noting that the annual audits were not among the data made available to him on September 30. He again asked for the audits.</p> <p>In his opinion request, Mr. Stengrim wrote, As of the date of this letter, there has been no response from the [Board].</p> <p>Mr. Stengrim provided to the Commissioner a copy of the September 20 and 30 letters, and a copy of the December 2 letter.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Stengrim's opinion request, the Commissioner agreed to to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to a September 20, 2004, request to inspect the annual audits for the past five years?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)</p> <p>Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.</p> <p>In his comments to the Commissioner, Mr. Smith wrote:</p> <p class="opinion_quote">The [Board] provided to Mr. Stengrim in response to his request all annual financial statements for the past five years.</p> <p class="opinion_quote">Apparently, Mr. Stengrim's concern is that the annual financial statements provided to him were not audited. The [Board] does not possess audited statements for the years in question.</p> <p>In his September 20, 2004, letter, Mr. Stengrim asked to inspect annual audits for the past five years. On September 30, 2004, the Board provided what it indicated were data responsive to the request. However, the Board did not provide the audits or explain that the audits did not exist. When Mr. Stengrim again inquired about the audits on December 2, 2004, the Board did not respond. As stated above, the Board has certain obligations when responding to data practices requests. When the Board responded to Mr. Stengrim's September 20, 2004, request, the Board should have notified him that it was not in possession of the annual audits. Thus, the Board's response was not timely.</p> <p>A final note is in order. It is not clear what Mr. Smith means by stating that the Board does not <em>possess</em> the data. The Commissioner assumes he means that the data do not exist, not that someone else other than the Board is in possession of the data. As the Commissioner has opined previously, it is important for government entities to be clear and unambiguous in their communications regarding data practices requests.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Red River Watershed Management Board did not comply with Minnesota Statutes, Chapter 13, in responding to a September 20, 2004, request to inspect the annual audits for the past five years.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: October 4, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673532663832023-11-02T14:11:06Z266258266315266293266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267772" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-09-28T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the City of Kimball typically would include in the minutes of an open meeting: two resolutions regarding the discipline of two City of Kimball employees who have collective bargaining rights? Pursuant to Minnesota Statutes, Chapter 13, would the classification of the data be the same if the employees did not have collective bargaining rights?September 28, 2005; City of Kimball36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On August 4, 2005, IPAD received a letter from Rhonda Pagel, an attorney representing the City of Kimball. In her letter, Ms. Pagel asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. Ms. Kimball provided additional information and clarification in a letter dated August 12, 2005.</p> <p>A summary of the facts as provided by Ms. Pagel is as follows. In her August 12, 2005, letter, she discussed two draft resolutions. Each resolution contains data about an employee who is the subject of a complaint(s). Ms. Pagel wrote:</p> <p class="opinion_quote">It is my understanding that the data in the Resolution is normally private data. However, Minn. Stat. section 13D.05, subd. 5 indicates that data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public.</p> <p class="opinion_quote">The City's normal practice is to include the entire text of resolutions in the minutes.</p> <p class="opinion_quote">The League of Minnesota Cities suggests that non-public data that is discussed at an open meeting not be specifically detailed in the minutes. However, as the Resolution encompasses the Council's findings, it obviously needs to be detailed.</p> <p class="opinion_quote">The discipline is not final as the employees are part of a union and have the ability to request arbitration.</p> <p class="opinion_quote">I am requesting an opinion to determine the classification of the resolutions. I would also greatly appreciate any information regarding the classification of the resolutions if the employees involved were <u>not</u>part of [sic] union and did not have collective bargaining rights. [Emphasis provided.]</p> <p>Ms. Pagel provided to the Commissioner a copy of the draft resolutions.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Ms. Pagel's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the City of Kimball typically would include in the minutes of an open meeting: two resolutions regarding the discipline of two City of Kimball employees who have collective bargaining rights?</li> <li>Pursuant to Minnesota Statutes, Chapter 13, would the classification of the data be the same if the employees did not have collective bargaining rights?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data the City of Kimball typically would include in the minutes of an open meeting: two resolutions regarding the discipline of two City of Kimball employees who have collective bargaining rights?</em></p> <p>Government data about current and former employees are classified at Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public and subdivision 4 classifies most other personnel data as private. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>A final disposition occurs when:</p> <p class="opinion_quote">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.</p> <p>(See section 13.43, subdivision 2(b).)</p> <p>According to Ms. Pagel, the involved employees have collective bargaining rights. Ms. Pagel noted that a final disposition has not occurred as both employees have the ability to request arbitration. Therefore, based on section 13.43, any data in the resolutions of which the employees are the subjects are private. Other data in the resolutions are subject to the general presumption that all government data are public unless otherwise classified. (See section 13.03, subdivision 1.)</p> <p>However, because the Kimball City Council apparently has authority to discipline the employees in question, provisions in Minnesota Statutes, Chapter 13D, the Open Meeting Law, also must be considered. Section 13D.05, subdivision 1(b), states:</p> <p class="opinion_quote">Data that are not public may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body.</p> <p>Section 13D.05, subdivision 2(b) states:</p> <p class="opinion_quote">A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.</p> <p>Given the content of the resolutions, the City apparently has concluded that disciplinary action against the employees is warranted. Thus, the Kimball City Council must conduct related discussions in an open meeting. According to Ms. Pagel, the City Council's past practice is to create a resolution documenting the basis for the discipline and include the text of the resolution in the minutes of the meeting. Section 13D.05, subdivision 1(c), states, Data discussed at an open meeting retain the data's original classification; however, a record of the meeting, regardless of form, shall be public. Thus, in the Commissioner's opinion, if the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.</p> <p>That said, however, additional comments are in order. The Legislature did not define <em>record of a meeting</em>. One interpretation certainly supports the conclusion that if the data in the resolutions are incorporated into the minutes of an open meeting, the data are public. Technically, the City appears not to be in violation of Chapters 13 and 13D if it incorporates the resolutions into the meeting record.</p> <p>Ms. Pagel stated in her opinion request that the League of Minnesota Cities does not encourage the inclusion of not public data in meeting minutes. In terms of maintaining a record of an open meeting, Chapter 13D requires only that public bodies keep a journal of the votes of the members. (See section 13D.01, subdivision 4.) Therefore, the City Council has discretion as to what it will include in the <em>record of the meeting</em> when employees are to be disciplined.</p> <p>In the matter at hand, the employees have rights under a collective bargaining agreement to grieve discipline imposed by the City Council. When that process is complete or the employees choose not to exercise their rights, a final disposition will have occurred and any data that support the City Council's decision to discipline are public. Until there is final disposition, the data that are the basis for the discipline are private.</p> <p>The Legislature granted to public bodies immunity from liability for discussing not public data at open meetings; however, the Commissioner questions what the Legislature intended in terms of the extent of such releases. Here, the City can document the decision of the council members by referring to the private data and record the votes of the Council's members as is required by section 13D.01, subdivision 4, without disclosing private personnel data. This practice would preserve the protections for employees provided in section 13.43. Data that support the discipline eventually would become public as provided in section 13.43, subdivision 2(a)(5).</p> <p>Although the legislative intent behind <em>record of a meeting</em> is unclear, based on the plain words, it appears that if the City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.</p> <h2>Issue 2:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, would the classification of the data be the same if the employees did not have collective bargaining rights?</em></p> <p>As provided in section 13.43, subdivision 2(b), when an employee is not covered under a collective bargaining agreement, a final disposition occurs when the entity makes its final decision about disciplinary action. Thus, when a government entity has made its final decision about disciplinary action, the final disposition of the disciplinary action together with the specific reasons for the action and data documenting the basis for the action all become public. Here, based on the contents of the resolutions, the Commissioner assumes most of the data in the resolutions would be public.</p> <p>As discussed in the analysis of Issue 1, because the matter of disciplining the employees has come before the Kimball City Council, the provisions of Chapter 13D also must be considered. Pursuant to section 13D.05, subdivision 1(c), if the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public. Thus, if the employees do not have collective bargaining rights, both provisions of law provide that the data are public, so there is no need to take steps to protect the privacy rights of those employees.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Pagel raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapters 13 and 13D, if the two employees have collective bargaining rights, and the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting record, are public.</li> <li>Pursuant to Minnesota Statutes, Chapters 13 and 13D, if the two employees do not have collective bargaining rights, and the Kimball City Council incorporates the resolutions into the minutes of an open meeting, the resolutions, as part of the meeting records, are public.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: September 28, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677722663922663892663922022-01-19T19:23:23Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267869" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-08-25T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Nicollet County Attorney's office maintains: psychiatric records and data relating to psychiatric records about an alleged perpetrator gathered from a regional treatment center by a local police department as part of a criminal investigation?August 25, 2005; Nicollet County Attorney36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note: Under <a href="https://www.revisor.mn.gov/statutes/?id=144.293">Minnesota Statutes, section 144.293, subd. 2</a>, a provider or person that receives health records directly from a provider may not disclose those records without consent/specific authority/court order.</strong></p> <h2>Facts and Procedural History:</h2> <p>On April 26, 2005, IPAD received a letter dated April 25, 2005, from Michelle Zehnder Fischer, Assistant Nicollet County Attorney. In her letter, Ms. Fischer asked the Commissioner to issue an advisory opinion regarding the classification of certain data the County maintains. IPAD required additional information, which Ms. Fischer provided in a letter dated June 20, 2005.</p> <p>IPAD invited the Commissioner of the Minnesota Department of Human Services, Kevin Goodno, to provide comments, which he did in a letter dated July 26, 2005.</p> <p>A summary of the facts as Ms. Fischer provided them is as follows. In her April 25, 2005, letter, she wrote:</p> <p class="opinion_quote">a file was forwarded to my office for charging consideration that involved an alleged sexual assault that occurred at the St. Peter Regional Treatment Center between two patients.</p> <p class="opinion_quote">As part of the investigation, the St. Peter Police Department gathered information regarding the alleged perpetrator's commitment status and his psychiatric assessment records. The information also included the daily progress notes for the date in question.</p> <p class="opinion_quote">The alleged victim, through her power of attorney, is requesting that we disclose to her the police reports in this matter. A final determination has not been made as to whether the alleged perpetrator will be prosecuted. I understand that under Minn. Stat. section13.82, subd. 13, I must disclose the police reports to the alleged victim, as I do not believe that the release of this data would interfere with the investigation or that the request is prompted by a desire to engage in unlawful activities.</p> <p class="opinion_quote">The specific question, however, pertains to the release of the alleged perpetrator's psychiatric records which would appear to be covered under many aspects of [Chapter 13] as well as potential [HIPAA] laws.</p> <p>In her June 20, 2005, letter, Ms. Fischer added:</p> <p class="opinion_quote">The investigation at issue began when the St. Peter Police Department received a Vulnerable Adult Maltreatment Report under Minn. Stat. section626.557. The alleged victim was considered to be a vulnerable adult due to her hospitalization in a facility. As part of the investigation, the St. Peter Police Department gathered information regarding the alleged perpetrator's commitment status and his psychiatric assessment records. The information also included the daily progress notes for the date in question.</p> <p class="opinion_quote">During the course of his investigation [the detective] obtained a search warrant for the alleged perpetrator's records at the St. Peter Regional Treatment Center. [The detective] included the reports that he gathered, pursuant to the search warrant, in his case file. In his investigative report [the detective] references receipt of the reports, note [sic] the admission date of the alleged perpetrator, and his diagnosis. His report further states, please refer to the additional information from the [St. Paul Regional Treatment Center] accompanying this report.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Fischer's opinion request, the Commissioner agreed to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Nicollet County Attorney's office maintains: psychiatric records and data relating to psychiatric records about an alleged perpetrator gathered from a regional treatment center by a local police department as part of a criminal investigation?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Section 13.384, subdivision 3, classifies medical data as private. Subdivision 1 of section 13.384 defines medical data as:</p> <p class="opinion_quote">data collected because an individual was or is a patient or client of a hospital, nursing home, medical center, clinic, health or nursing agency operated by a state agency or political subdivision including business and financial records, data provided by private health facilities, and data provided by or about relatives of the individual.</p> <p>Because the St. Peter Regional Treatment Center is a facility operated by the Department of Human Services, it appears the data at issue, as they are created and maintained at the St. Peter Regional Treatment Center, are classified as private.</p> <p>In addition to classifying medical data as private, subdivision 3 of section 13.384 provides restrictions on the data subject's access in certain situations and, of relevance here, states that medical data can be released pursuant to a valid court order and as otherwise required by law.</p> <p>When government data travel from one government entity to another, section 13.03, subdivision 4, provides guidance regarding issues of classification. Subdivision 4(a) of section 13.03 states:</p> <p class="opinion_quote">The classification of data in the possession of an agency shall change if it is required to do so to comply with either judicial or administrative rules pertaining to the conduct of legal actions or with a specific statute applicable to the data in the possession of the disseminating or receiving agency.</p> <p>Here, the St. Peter Police Department collected private data from the Regional Treatment Center for the purpose of conducting a law enforcement investigation. Law enforcement data are classified specifically at section 13.82. Thus, it is the Commissioner's opinion that the data at issue, as they currently exist in the possession of the St. Peter Police Department and the Nicollet County Attorney's office, are classified pursuant to section 13.82.</p> <p>In her opinion request, Ms. Fischer stated, A final determination has not been made as to whether the alleged perpetrator will be prosecuted. She also wrote, I do not believe that the release of this data would interfere with the investigation or that the request is prompted by a desire to engage in unlawful activities.</p> <p>Subdivision 7 of section 13.82 classifies active criminal investigation data as confidential. However, subdivision 13 of section 13.82 provides that crime victims and alleged crime victims can gain access to these data in certain situations:</p> <p class="opinion_quote">On receipt of a written request, the prosecuting authority shall release investigative data collected by a law enforcement agency to the victim of a criminal act or alleged criminal act or to the victim's legal representative unless the release to the individual subject of the data would be prohibited under section 13.821 [not applicable here] or the prosecuting authority reasonably believes:</p> <p class="opinion_quote">(a) that the release of that data will interfere with the investigation; or</p> <p class="opinion_quote">(b) that the request is prompted by a desire on the part of the requester to engage in unlawful activities.</p> <p>Thus, given the statutory provisions discussed above and the assertion by the Assistant County Attorney that the release of the data will not interfere with the investigation, it appears the psychiatric records and data relating to psychiatric records about the alleged perpetrator currently are confidential but may be released to the alleged victim.</p> <p>The Commissioner notes that HIPAA, the federal Health Insurance Portability and Accountability Act, does not appear to restrict the alleged victim's access to the data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Fischer raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.82, because the criminal investigation currently is active, the following data are confidential but may be released to the alleged victim: psychiatric records and data relating to psychiatric records about an alleged perpetrator gathered from a regional treatment center by a local police department as part of a criminal investigation.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 25, 2005</p> <hr /> </td> </tr> </tbody> </table> </div>2678692669962664112669872665002667142664332666952022-01-19T19:23:23Z266258266309266282266284266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267803" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-08-10T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: audiotapes of two closed Saint Paul Board of Education meetings containing "labor relations information" as defined in section 13.37, subdivision 1(c), that have not been presented during the collective bargaining process? Regardless of the classification of the data in the audiotapes, must the District make the tapes available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2, if all labor contracts have not been signed by the governing body for the current budget period? If the audiotapes, or parts of them, contain nonpublic or protected nonpublic data, pursuant to section 13.37, subdivision 1(c), and the Board has signed all labor contracts for the current budget period, does section 13D.03, subdivision 2, require that the District make the tapes available to the public? If the District must make the audiotapes, or parts of them, available to the public pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District withhold the tapes because the public and nonpublic or protected nonpublic data are so inextricably intertwined that redaction would be unreasonable? If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District charge for the cost of redacting nonpublic or protected nonpublic data? If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, must the District provide copies or is providing an opportunity to listen to the tapes sufficient? August 10, 2005; School District 625 (Saint Paul)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On May 17, 2005, IPAD received a letter dated same, from Nancy Cameron, Assistant General Counsel for Independent School District 625, Saint Paul. In her letter, Ms. Cameron asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the District maintains. IPAD requested clarification, which the District provided on June 21, 2005.</p> <p>A summary of the facts is as follows. In her opinion request, Ms. Cameron wrote:</p> <p class="opinion_quote">[The District] negotiates with over 20 labor unions. Approximately half of the contracts are renegotiated every year, usually for two-year contract periods.</p> <p class="opinion_quote">In the fall of 2004, the School District negotiators negotiated with AFSCME Council, 5, Local #844 over the terms of and conditions of the next contract, anticipated to be effective from July 1, 2004 through July 1, 2006. After several negotiation sessions, the District and AFSCME negotiators could not reach agreement AFSCME requested mediation and a mediator was appointed by the Bureau of Mediation Services.</p> <p class="opinion_quote">After mediation commenced in November 2004, School District negotiators reached their settlement authority within the parameters set by the Board of Education. The negotiators accordingly needed them to return to the Board of Education to determine what direction the Board wanted them to take and what additional authority, if any, they had to settle the contract.</p> <p class="opinion_quote">The Board of Education noticed and held a closed meeting on December 7, 2004, for the purpose of discussing labor negotiations. This meeting was tape recorded as required by Minn. Stat. section 13D.03, subd. 2(a) (2004) Negotiators received direction from the Board as to how the Board wanted negotiators to proceed.</p> <p class="opinion_quote">Mediation resumed among the District and union representatives on January 14, 2005. At that meeting, District negotiators presented the District's Final Settlement Proposal to AFSCME Council 5, Local #844 Thereafter, the Board of Education noticed and held a closed Board meeting on January 18, 2005, for the purpose of discussing labor negotiations. That meeting was tape recorded as required by Minn. Stat. section 13D.03, subd. 2(a) (2004). The same topics were addressed at this meeting as at the December 7, 2005 meeting.</p> <p class="opinion_quote">Union leadership presented the School District's offer to AFSCME members on January 31, 2005. Although leadership recommended a strike vote, AFSCME members voted to accept the School District's proposal. The AFSCME contract was signed by the School Board on March 22, 2005.</p> <p class="opinion_quote">The School District's 2005 fiscal year runs from July 1, 2004 through June 30, 2005. Contracts for four unions-representing the pipefitters, plumbers, roofers and sheet metal workers-expired on May 1, 2005. The School Board has not signed new labor contracts with these unions.</p> <p class="opinion_quote">On April 26, 2005 [an individual] requested copies of the tapes of the closed School Board meetings held in December 2004 and January 2005.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Ms. Cameron's request for an opinion, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: audiotapes of two closed Saint Paul Board of Education meetings containing labor relations information as defined in section 13.37, subdivision 1(c), that have not been presented during the collective bargaining process?</li> <li>Regardless of the classification of the data in the audiotapes, must the District make the tapes available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2, if all labor contracts have not been signed by the governing body for the current budget period?</li> <li>If the audiotapes, or parts of them, contain nonpublic or protected nonpublic data, pursuant to section 13.37, subdivision 1(c), and the Board has signed all labor contracts for the current budget period, does section 13D.03, subdivision 2, require that the District make the tapes available to the public?</li> <li>If the District must make the audiotapes, or parts of them, available to the public pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District withhold the tapes because the public and nonpublic or protected nonpublic data are so inextricably intertwined that redaction would be unreasonable?</li> <li>If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District charge for the cost of redacting nonpublic or protected nonpublic data?</li> <li>If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, must the District provide copies or is providing an opportunity to listen to the tapes sufficient?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: audiotapes of two closed Saint Paul Board of Education meetings containing labor relations information as defined in section 13.37, subdivision 1(c), that have not been presented during the collective bargaining process?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Pursuant to Minnesota Statutes, Chapter 13D, the Open Meeting Law, a governing body, such as the Saint Paul Board of Education, may hold a closed meeting to consider strategy for labor negotiations. (See Minnesota Statutes, section 13D.03.) Subdivision 2 of section 13D.03 requires the governing body to (1) tape-record the proceedings of a closed meeting and (2) preserve the recording for two years after the contract is signed and make the recording available to the public after the governing body signs all labor contracts for the current budget period.</p> <p>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.</p> <p>In her opinion request, Ms. Cameron stated that the two audiotapes in question were recorded at closed meetings of the Board on December 7, 2004 and January 18, 2005. She further stated that the Board signed the AFSCME contract on March 22, 2005. In addition, Ms. Cameron wrote:</p> <p class="opinion_quote">The School District's 2005 fiscal year runs from July 1, 2004 through June 30, 2005. Contracts for four unions-representing the pipefitters, plumbers, roofers and sheet metal workers-expired on May 1, 2005. The School Board has not signed new labor contracts with these unions.</p> <p>Ms. Cameron also wrote:</p> <p class="opinion_quote">Information contained in much of the discussion of the tapes is 'labor relations data' as defined by Minn. Stat. section 13.37, subd 1(c). It consists of 'management positions on economic and noneconomic items that have not been presented during the collective bargaining process' and 'information specifically collected or created to prepare the management position. At the meetings, the Board of Education was presented with written information and analyses, and discussed with the District's administrative staff and negotiators: negotiation history, theory, and strategy; developments and proposals in the AFSCME negotiations and mediation process.</p> <p>Section 13D.03 provides that audiotapes must be preserved for two years after the contract is signed and must be made available to the public after all labor contracts are signed for the current budget period. Here, the AFSCME contract was signed on March 22, 2005, but the Board apparently has not signed all labor contracts for the current budget period. Thus, at this time, it appears the audiotapes are not available to the public.</p> <p>Had the Board signed all labor contracts for the current budget period, the District would be required to make the audiotapes available to the public pursuant to section 13D.03. The issue Ms. Cameron raises is whether the District could then withhold any labor relations data , as defined in section 13.37, that exist in the audiotapes. Section 13.37 classifies labor relations data as not public. Because there appears to be a conflict between the two provisions, the Commissioner consulted Minnesota Statutes, Chapter 645, which provides guidance on statutory interpretation.</p> <p>Minnesota Statutes, section 645.26, provides that when the provisions of two or more laws passed at different sessions of the Legislature are irreconcilable, the law latest in date of final enactment shall prevail. Here, in 1980 the Legislature passed the language in section 13.37 classifying certain labor relations data as not public and in 1981 passed the language in section 13D.03 making public audiotapes of meetings closed for labor negotiation strategies. (See Laws of Minnesota for 1980, Chapter 603, section 15, and Laws of Minnesota for 1981, Chapter 174, section 1.) Therefore, it appears section 13D.03 controls in situations where an audiotape of a closed meeting contains data relating to management positions on economic and noneconomic items that were not presented during the collective bargaining process or interest arbitration.</p> <h2>Issue 2:</h2> <p><em>Regardless of the classification of the data in the audiotapes, must the District make the tapes available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2, if all labor contracts have not been signed by the governing body for the current budget period?</em></p> <p>As stated in the analysis regarding Issue 1, if the Board has not signed all labor contracts for the current budget period, the District is not required to make the audiotapes available to the public.</p> <h2>Issue 3:</h2> <p><em>If the audiotapes, or parts of them, contain nonpublic or protected nonpublic data, pursuant to section 13.37, subdivision 1(c), and the Board has signed all labor contracts for the current budget period, does section 13D.03, subdivision 2, require that the District make the tapes available to the public?</em></p> <p>As stated in the analysis regarding Issue 1, if the Board has signed all labor contracts for the current budget period, the District is required to make the audiotapes available to the public regardless of whether they contain labor relations information, as that term is defined in section 13.37, subdivision 1(c).</p> <h2>Issue 4:</h2> <p><em>If the District must make the audiotapes, or parts of them, available to the public pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District withhold the tapes because the public and nonpublic or protected nonpublic data are so inextricably intertwined that redaction would be unreasonable?</em></p> <p>As stated in the analysis regarding Issue 1, if the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. Therefore, the issue of data being inextricably intertwined is moot.</p> <h2>Issue 5:</h2> <p><em>If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District charge for the cost of redacting nonpublic or protected nonpublic data?</em></p> <p>As stated in the analysis regarding Issue 1, if the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. Therefore, the issue of charging for redaction of the tape is moot. However, the Commissioner notes that, pursuant to section 13.03, subdivision 3(c), government entities may not charge for separating public from not public data.</p> <h2>Issue 6:</h2> <p><em>If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, must the District provide copies or is providing an opportunity to listen to the tapes sufficient?</em></p> <p>Pursuant to section 13.02, subdivision 7, the audiotapes are government data. Pursuant to section 13.03, subdivision 3(a), individuals are permitted to inspect and obtain copies of government data. Thus, if the individual asking to gain access to the audiotapes wants a copy, rather than an opportunity to listen to the audiotapes, the District must provide a copy. The District may charge for the copy as provided in section 13.03, subdivision 3(c).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Cameron raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Because the Saint Paul Board of Education apparently has not signed all labor contracts for the current budget period, the audiotapes of two Board meetings closed for labor negotiations are not available to the public, pursuant to Minnesota Statutes, section 13D.03.</li> <li>If the Board has not signed all labor contracts for the current budget period, the District is not required to make the audiotapes available to the public.</li> <li>If the Board had signed all labor contracts for the current budget period, the District would be required to make the audiotapes available to the public.</li> <li>If the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. The issue of charging for redaction is moot.</li> <li>If the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. The issue of data being inextricably intertwined is moot.</li> <li>Pursuant to section 13.03, subdivision 3(c), upon request, the District is required to provide copies of the audiotapes.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: August 10, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678032663492663502662782663512022-05-05T15:52:55Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266914" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-08-09T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data that Independent School District 2154, Eveleth-Gilbert, maintains as per Minnesota Statutes, section 120A.24 (specifically applying to home-schooled children)?August 9, 2005; School District 2154 (Eveleth-Gilbert)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On June 21, 2005, IPAD received a letter dated June 20, 2005, from John Colosimo, an attorney representing Independent School District 2154, Eveleth-Gilbert. In his letter, Mr. Colosimo asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD requested clarification, which Mr. Colosimo provided in a letter dated June 28, 2005. </p><p> In a letter dated June 30, 2005, the Commissioner invited the Minnesota Department of Education to submit comments. The Department of Education did not submit comments. </p><p> In his opinion request, Mr. Colosimo asked the Commissioner to opine as to the classification of data relating to children who are home-schooled. </p><hr /><br /><h2> Issue: </h2><p> Based on Mr. Colosimo's opinion request, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data that Independent School District 2154, Eveleth-Gilbert, maintains as per Minnesota Statutes, section 120A.24 (specifically applying to home-schooled children)? </td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. </p><p> Provisions of both Minnesota and federal law govern access to data about students and their parents. Minnesota Statutes, section 13.32, classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 C.F.R. Part 99. Pursuant to section 13.32, most data about students and their parents are private. </p><p> Mr. Colosimo's question to the Commissioner specifically relates to data collected and maintained by the District pursuant to reporting requirements in Minnesota Statutes, section 120A.24. Subdivision 1 of section 120A.24 states: </p><p class="opinion_quote"> The person in charge of providing instruction to a child must submit the following information to the superintendent of the district in which the child resides: </p><p class="opinion_quote"> 1) by October 1 of each school year, the name, birth date, and address of each child receiving instruction; <br /> 2) the name of each instructor and evidence of compliance with one of the requirements specified in section 120A.22, subdivision 10; <br /> 3) an annual instructional calendar; and <br /> 4) for each child instructed by a parent who meets only the requirement of section 120A.22, subdivision 10, clause (6), a quarterly report card on the achievement of the child in each subject area required in section 120A.22, subdivision 9. </p><p> In 2003, the Legislature enacted language specifically classifying data about children or their parents whose identities must be reported pursuant to section 120A.24. (See Laws of Minnesota 2003 First Special Session, Chapter 8, Article 2, Section 5.) This language was incorporated into section 13.32 as subdivision 4a. It provides: </p><p class="opinion_quote"> Data collected by a public school on a child or parent of a child, whose identity must be reported pursuant to section 120A.24, is private data which: <br /> 1) shall not be designated directory information pursuant to subdivision 5 unless prior consent is given by the child's parent or guardian; and <br /> 2) may be disclosed only pursuant to subdivision 3, clause (a), (b), (c), or (f). <br /> This provision does not apply to students who receive shared time educational services from a public agency or institution. </p><p> Thus, based on section 13.32, subdivision 4a, any data the District collects and maintains about home-schooled students or their parents as required pursuant to section 120A.24, are private. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Colosimo raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.32, subdivision 4a, data that Independent School District 2154, Eveleth-Gilbert, collects and maintains as per Minnesota Statutes, section 120A.24 (specifically applying to home-schooled children) are private. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: August 9, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2669142669132022-01-19T19:23:22Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267499" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-06-29T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data in Exhibits A, B, C, and D, relating to the resignation of two former District employees?June 29, 2005; School District 709 (Duluth)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 20, 2005, IPAD received a letter dated same, from Kevin Rupp and Amy Mace, attorneys representing Independent School District 709, Duluth. In their letter, Mr. Rupp and Ms. Mace asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the District maintains. IPAD required clarification, which Mr. Rupp and Ms. Mace provided on May 5, 2005. IPAD invited two former District employees, X and Y, to submit comments. On May 24, 2005, IPAD received comments from X's attorney. Y did not submit comments.</p> <p>A summary of the facts is as follows. In their opinion request, Mr. Rupp and Ms. Mace wrote:</p> <p class="opinion_quote">On... the District received a written complaint about [X and Y.] When the District informed [X and Y], they offered to resign. District Administrators told them that they were in the process of gathering information and that they would get back to them. [About a week later], the District Administration told [X and Y] that they needed their resignations based on the complaints against them. [Shortly thereafter X and Y submitted their resignations.]</p> <p class="opinion_quote">After receiving the original complaint, the District received an additional unrelated and more serious complaint against [X]. The District investigated both complaints. A written investigation report dated... was completed regarding the first complaint. A copy of the investigation report is included as Exhibit A. A written investigation report regarding the second complaint was also completed. A copy of the investigation report is included as Exhibit B.</p> <p class="opinion_quote">After completing the second investigation, the District determined that [X] would never be eligible for employment with the District again. The District sent [X] a letter dated... stating that the letter confirmed and documented [X's] resignation. The letter also notified [X] that [X] was precluded from applying for or obtaining employment in any future Duluth Public School District positions. A copy of the letter is enclosed as Exhibit C.</p> <p class="opinion_quote">On... the District sent [Y] a letter, stating that the letter confirmed and documented [Y's] resignation and that [Y] is precluded from applying for or obtaining employment in any future Duluth Public School District... ;for a period of three years... A copy of the letter is enclosed as Exhibit D.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Rupp and Ms. Mace's opinion request, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data in Exhibits A, B, C, and D, relating to the resignation of two former District employees?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Mr. Rupp and Ms. Mace asked the Commissioner to comment on the classification of four documents. Upon examination, it appears that while the documents contain data about District employees and District students, most of the data are about either X or Y. Thus, before proceeding, it is important to resolve the issue of the classification of the data about X and Y.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Section 13.43 classifies data about former and current employees. Of relevance to this opinion, subdivision 2(a)(4) states that the following data are public: the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in disciplinary action.</p> <p>Subdivision 2(b) provides a definition of final disposition :</p> <p class="opinion_quote">For purposes of this subdivision, a final disposition occurs when the state agency, statewide system, or political subdivision 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. Final disposition includes a resignation by an individual when the resignation occurs after the final decision of the state agency, statewide system, political subdivision, or arbitrator.</p> <p>In his comments to the Commissioner, X's attorney wrote:</p> <p class="opinion_quote">With respect to [X], the Commissioner need not reach the question posed in your May 13, 2005 letter because [X] was not asked to resign.</p> <p class="opinion_quote">... [X] spoke with [a District employee - Z] and verbally tendered [X's] resignation. At that time, [Z] encouraged [X] not to resign, but [X] submitted a formal resignation letter on. To [X's] knowledge, neither investigation described in [the District's letter confirming X's resignation] had begun as of the date [X] verbally tendered [X's] resignation.</p> <p class="opinion_quote">Whether or not [X's] belief about the timing is correct, <strong>at no time did [Z] or anyone else at School District 709 ask [X] to resign.</strong> [Emphasis provided.] [X] spoke recently with [Z], who confirmed that [Z] did not ask [X] to resign. Indeed, the [District's letter confirming X's resignation] was written <strong>more than a month after [X] resigned</strong>, further demonstrating that [X] did not resign because the [District], having investigated certain allegations asked [X] to step aside. [Emphasis provided.] Because the [District] did not ask [X] to resign, [X's] resignation cannot be viewed as disciplinary action...</p> <p class="opinion_quote">While it is clear from the above that [X] was not asked to resign, even on a theoretical level, a governmental agency that asks an employee to resign, prior to final disposition of an investigation, is not carrying out discipline that may be publicly disclosed...</p> <p class="opinion_quote">Under [Chapter 13], a governmental agency may publicly disclose that an employee has been disciplined, and the reasons for the discipline, only upon the final disposition of the matter... Final disposition does not occur until the political subdivision makes its final decision about the disciplinary action. The statute specifically states that [f]inal disposition includes a resignation by an individual when the resignation occurs after the final decision of the [government entity or arbitrator]. ... (Emphasis added.) Thus, by implication, [Chapter 13] contemplates that an individual's resignation <u>before</u> the final decision would not be a final disposition. [Emphasis provided.] Had the legislature intended that a resignation prior to a final decision would transform private disciplinary data into public data, it would have said so in Minn. Stat. section 13.43, subd. 2(b).</p> <p class="opinion_quote">Moreover, a request that an individual resign cannot be a final disposition of discipline unless the governmental body has made a final decision that it will issue discipline in the absence of the resignation.</p> <p>X's attorney then referenced several Commissioner of Administration advisory opinions relating to final decisions of disciplinary action: <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267686" title="02-053" target="_blank">02-053</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267576" title="00-072" target="_blank">00-072</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267864" title="96-010" target="_blank">96-010</a>.</p> <p>He further wrote:</p> <p class="opinion_quote">... If an employer requests an employee to resign before making a final decision on discipline, and the employee declines to resign, <em>only then</em> would the employer be required to make a final decision on the potential discipline. [Emphasis provided.] Conversely, under the same scenario, if the employee resigns upon his or her employer's request, prior to a final decision on discipline, the resignation makes a final decision on discipline unnecessary.</p> <p class="opinion_quote">... In sum, not only was [X] not asked to resign, but even had the school district asked [X] to resign, such a request would not have constituted discipline that permits the school district to disclose data regarding the matter.</p> <p>Here, with regard to X, there is a factual dispute the Commissioner cannot resolve. Mr. Rupp and Ms. Mace state that the District asked X to resign. X's attorney, conversely, states that the District did not ask X to resign. With regard to Y, however, no one submitted information contrary to the District's position.</p> <p>That said, as to whether the District's apparent request for X and Y to resign represents a final disposition, the Commissioner agrees with the position asserted by X's attorney. As previous opinions have discussed, if no final disposition has occurred, only the existence and status of a complaint are public. A final disposition cannot occur until the agency has made a final decision about disciplinary action. Further, a resignation occurring prior to a final decision about disciplinary action is not a final disposition. As X's attorney argues, and according to documents provided to the Commissioner, X (and Y) submitted their resignations almost a month prior to the District completing its investigation of the original complaint. This indicates the District had not reached a final decision about disciplinary action at the time X and Y submitted their resignations.</p> <p>It should be noted that neither the District nor X's attorney provided information as to the District's policies regarding what type of action constitutes disciplinary action. The Commissioner assumes, therefore, that nothing in the policies is definitive on the matter.</p> <p>Thus, of the data in Exhibits A - D relating to the complaints about X and Y, only the existence and status of the complaints are public. Other data in the exhibits, relating to the complaints, are private.</p> <p>Exhibits A - D also contain data about students and other employees. Both Minnesota and federal law govern data about students. Section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Regulations, 34 C.F.R. Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.</p> <p>One of the exceptions, under section 13.32, subdivision 5, is that any data a district chooses to designate as directory information pursuant to the provisions of FERPA are public. Under the federal regulations, directory information means information contained in an education record of a student... (See 34 C.F.R. section 99.3.)</p> <p>Mr. Rupp and Ms. Mace did not provide information indicating that the District has designated, as public directory information, any of the data of which the students are the subject. Therefore, the Commissioner assumes data in the exhibits about the students are private.</p> <p>The exhibits also contain data about employees other than X and Y. Most, if not all, of the data about the employees do not appear to be the type of data classified as public pursuant to section 13.43, subdivision 2. Those data, therefore, are private pursuant to subdivision 4 of section 13.43.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Rupp and Ms. Mace raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, of the data in Exhibits A, B, C, and D that relate to the complaints about X and Y, only the existence and status of the complaints are public. Data in the exhibits relating to students appear to be private. Data in the exhibits relating to other employees appear to be private.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 29, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674992669802667522665562022-01-19T19:23:21Z266258266420266414266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267586" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-06-24T15:15:43ZDid Resource and Training Solutions (RTS) comply with Minnesota Statutes, Chapter 13, in denying access to the following data: the operating agreement between RTS and Blue Cross Blue Shield of Minnesota?June 24, 2005; Resource Training and Solutions36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 26, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS) maintains. IPAD requested clarification, which Mr. Leyk provided on May 12, 2005.</p> <p>IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director, in response to Mr. Leyk's request. The purposes of this letter, dated May 13, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On June 6, 2005, IPAD received a letter dated June 3, 2005, from Thomas Pursell, an attorney representing RTS. In his letter, Mr. Pursell advised that he, on May 31, 2005, sent a copy of the data Mr. Leyk was seeking to Mr. Leyk's attorney. Mr. Pursell wrote, Because Blue Cross Blue Shield has waived its 'trade secret' designation for this document, [RTS] has produced it (except a portion of the document which was withheld provisionally on different grounds.)</p> <p>IPAD contacted Mr. Leyk who indicated he still wished the Commissioner to issue the advisory opinion.</p> <p>On June 15, 2005, IPAD received comments, dated same, from Mr. Pursell regarding the issue Mr. Leyk asked the Commissioner to address.</p> <p>A summary of the facts is as follows. In a letter dated March 21, 2005, Mr. Leyk asked to inspect, among other items, the operating agreement between RTS and Blue Cross Blue Shield.</p> <p>In a letter dated April 19, 2005, Mark Kinney, another attorney representing RTS, wrote to Mr. Leyk:</p> <p class="opinion_quote">I have enclosed a copy of a letter dated August 11, 2004, from Blue Cross Blue Shield of Minnesota. According to Blue Cross, the Operating Agreement between itself and [RTS] is trade secret information as defined in Minn.Stat. section 13.37, subd. 1(b). Accordingly, it is nonpublic data under Minn.Stat. section 13.37, subd. 2.</p> <p class="opinion_quote">The question of whether the Blue Cross Blue Shield Operating Agreement is a trade secret protected by [Chapter 13] was not addressed in [Advisory Opinion 05-011]. The Service Cooperatives intend to be responsive to any Opinion of the Commissioner in regards to [Chapter 13], and you may wish to submit this issue to the Commissioner for interpretation.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Leyk's request for an opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did Resource and Training Solutions (RTS) comply with Minnesota Statutes, Chapter 13, in denying access to the following data: the operating agreement between RTS and Blue Cross Blue Shield of Minnesota?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a) and Minnesota Rules, section 1205.0300.)</p> <p>Government data are public unless otherwise classified. (See section 13.03, subdivision 1.)</p> <p>Minnesota Statutes, section 13.37, subdivision 1(b), provides:</p> <p class="opinion_quote">Trade secret information means government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.</p> <p>Pursuant to subdivision 2 of section 13.37, trade secret data are classified as nonpublic (data not on individuals) and as private (data on individuals).</p> <p>Here, on March 21, 2005, Mr. Leyk wrote to RTS and asked to inspect the operating agreement between RTS and Blue Cross Blue Shield of Minnesota. RTS denied the request on the basis that Blue Cross had taken the position that the data in the agreement were classified as trade secret and, therefore, were not public. After Mr. Leyk requested this opinion, RTS reversed its position and provided parts of the operating agreement, stating that Blue Cross had waived its 'trade secret' designation. (Mr. Pursell stated that a portion of the agreement was withheld provisionally on different grounds.)</p> <p>In his comments to the Commissioner, Mr. Pursell wrote:</p> <p class="opinion_quote">... Because [Chapter 13] imposes on public agencies not only the obligation to make available public data, but also the obligation to protect nonpublic data, and because revealing the trade secrets of a third party could subject the organization to liability under... [Chapter 13]... RTS] declined to produce the Operating Agreement, inviting Mr. Leyk to request an IPAD Advisory Opinion if he took issue with [RTS'] position... Because [RTS] faced potential legal action from both Jeff Leyk and [Blue Cross], it hoped to rely on the immunity accorded it by acting consistent with the IPAD Advisory Opinion on this matter.</p> <p>Mr. Pursell further stated that since that time, Mr. Leyk has filed a lawsuit in district court relating to possible violations of Chapter 13. Mr. Pursell wrote, Shortly after the lawsuit was filed, [Blue Cross] waived its claim of trade secret for the operating agreement... RTS] promptly provided the document to Mr. Leyk...</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267022#/detail/appId/1/id/267890" title="96-035" target="_blank">Advisory Opinion 96-035</a>, the Commissioner wrote:</p> <p class="opinion_quote">The vendors need to provide specific rationales for their assertion that their proposals contain trade secrets, and the District needs to make its own determination regarding the appropriateness of those claims. After doing so, the District must make public those portions of the proposals that are not trade secret data, and are therefore available for public inspection and copying, pursuant to Section 13.03.</p> <p>A government entity, such as RTS, has an obligation to respond promptly and appropriately to data practices requests from individuals who are not data subjects. To do so requires that the entity be aware, generally, of how data it collects and maintains are classified. When an entity collects or receives data from a private person and the data are marked trade secret or confidential or something similar, the entity should require the private person to provide analysis as to why, pursuant to Chapter 13, the person considers the data to be not public. If the entity does not agree with the private person's analysis, one option is for the entity to seek assistance from IPAD in determining whether the data meet standards established in section 13.37 for trade secret data.</p> <p>Here, RTS relied upon its contractor, Blue Cross, to determine the classification of the data in the operating agreement. Then, shortly after Mr. Leyk requested this opinion, Blue Cross reversed its position. Mr. Cavanna is the responsible authority of RTS and, as such, bears responsibility for determining whether or not to release requested data. Apparently, RTS determined its reliance on the trade secret exemption was inappropriate.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Leyk raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Resource and Training Solutions (RTS) did not comply with Minnesota Statutes, Chapter 13, in denying access, based on the trade secret provision of section 13.37, to the following data: the operating agreement between RTS and Blue Cross Blue Shield of Minnesota.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 24, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675862669732668582664352022-01-19T19:23:21Z266258266315266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267677" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-06-24T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: street addresses of rental properties, occupied by recipients of rental assistance benefits, which are owned by the Washington County Housing and Redevelopment Authority?June 24, 2005; Washington County Housing and Redevelopment Authority36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On May 17, 2005, IPAD received a letter from Kathleen Brennan, counsel for the Washington County Housing and Redevelopment Authority ( Authority. ) In her letter, she asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Authority maintains. A summary of the facts as provided by Ms. Brennan follows.</p> <p>Ms. Brennan wrote:</p> <p class="opinion_quote">The Authority owns approximately 56 scattered-site properties within Washington County that the Authority rents to eligible families under the Metropolitan Housing Opportunity Program ( MHOP ). The MHOP program is a federally-assisted public housing program and was created pursuant to the <em>Hollman</em> consent decree. <em>Hollman v. Cisneros</em>, No. 4-92-712 (D. Minn. 1995). . . . . The eligible families are tenants, not owners of the property, and as tenants they receive rental assistance benefits to assist with monthly rent.</p> <p class="opinion_quote">A member of the public has asked for the street addresses of the Authority's MHOP properties within Washington County. The request did not concern any home-ownership or home-rehabilitation assistance programs in which the Authority may participate. The request was limited to the location of properties involving rental assistance.</p> <p>Ms. Brennan enclosed copies of correspondence between the Authority and the data requestor, in which it informed the requestor of the total number of housing units the Authority owns, the cities in which they are located, and the number of units it owns in two specific townhome developments.</p> <p>Ms. Brennan asked the Commissioner to address the classification of data under Minnesota Statutes, section 13.462, in light of a 2003 amendment to that section.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Brennan's request for an opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: street addresses of rental properties, occupied by recipients of rental assistance benefits, which are owned by the Washington County Housing and Redevelopment Authority?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.462, benefit data are data on individuals collected or created because an individual seeks information about becoming, is, or was an applicant for or a recipient of benefits or services provided under various housing, home ownership, rehabilitation and community action agency . . . programs administered by [government entities].</p> <p>Pursuant to subdivision 3, benefit data are private, except for the following, which are public pursuant to subdivision 2:</p> <p class="opinion_quote">Names and addresses of applicants for and recipients of benefits, aid, or assistance through programs administered by any [government entity] that are intended to assist with the purchase, <u>rehabilitation, or other purposes related to</u> housing or other real property are classified as public data on individuals. <u>If an applicant or recipient is a corporation, the names and addresses of the officers of the corporation are public data on individuals. If an applicant or recipient is a partnership, the names and addresses of the partners are public data on individuals. The amount or value of benefits, aid, or assistance received is public data</u>. (Emphasis added. The 2003 amendment is indicated by the underlined text.)</p> <p>Prior to that amendment, the only benefit data that were public were data about individuals receiving benefits related to <u>purchasing</u> housing or other real property.</p> <p>Ms. Brennan wrote:</p> <p class="opinion_quote">The Authority is mindful of prior advisory opinions issued by the Department concerning benefit data. The Department concluded that the Minneapolis Public Housing Agency could not reveal the addresses of scattered site housing owned by the Agency because it constituted data that can identify recipients of housing benefits therefore making it private data under the Act. [See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267565" title="94-009" target="_blank">Advisory Opinion 94-009</a>.] . . . The Department distinguished between home-ownership programs and rental-assistance programs. Except for certain data about individuals who seek and receive assistance to purchase housing or other real property, all benefit data are private data on individuals. Id. at 3 (emphasis added); see also Advis. Opin 97-021 at 4 (limiting public data to names or addresses to those purchasing housing or other real property and holding that rehabilitation grant recipients constitute private data). Similarly, in a later advisory opinion, the Department concluded that addresses contained in housing inspection reports involving Section 8 participants are private data if the individuals may be identified through the address. [See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267569" title="02-048" target="_blank">Advisory Opinion 02-048</a>.]</p> <p>Ms. Brennan cited Minnesota Rules, Part 1205.0200, subpart 4, which provides, in relevant part:</p> <p class="opinion_quote">All data, in whatever form it is maintained, is 'data on individuals' if it can in any way identify any particular individual . . . . [including] if it identifies an individual in itself, or if it can be used in connection with other data elements to uniquely identify an individual. Such data shall include, but is not limited to, <u>street addresses</u>, job titles, and so forth where the particular data could only describe or identify one individual. (Emphasis added.)</p> <p>She wrote:</p> <p class="opinion_quote">In the present case, the Authority has received a request for street addresses involving rental assistance properties. Because the rental assistance properties are scattered-site housing units, the street addresses uniquely identify the families living in those rental units. The Authority's typical practice would be to withhold street address information as information that may identify specific tenant families, and therefore [sic] private data on individuals under section 13.462, subd. 3 and Minnesota Rules 1205.0200, subps. 4 and 9.</p> <p class="opinion_quote">One might argue that one should refer to the provision in section 13.462, subdivision 2. But that provision, as the Department has reasoned in past cases, concerns home ownership, rather than rental assistance. It specifically refers to benefits that are intended to assist with the purchase, rehabilitation, or other purposes related to housing or other real property. Id. The rental assistance properties involved in the present case do not concern the purchase of homes, the rehabilitation of homes, nor [sic] other real property.</p> <p class="opinion_quote">Under the Authority's past practices, the phrase other purposes related to housing should be read in the context of the narrow, surrounding language, which expressly concerns home ownership - house purchase and house rehabilitation. See <em>State v. Suess</em>, 52 N.W.2d 409, 415 (Minn. 1952) (statutory language must be construed in context of associated language; when two or more words are grouped together and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word. ); <em>Kolledge v. Famp;L Appliances</em>, 80 N.W.2d 62, 64 (Minn. 1956) ( It is a cardinal rule of statutory construction that a particular provision of a statute cannot be read out of context but must be taken together with other related provisions to determine its meaning. ); Minn. Stat. section 645.17 ( The legislature intends the entire statute to be effective and certain ). And subdivision 2 must also be construed as a narrow exception to the general rule that benefit data are to remain private, as clearly and expressly stated in subdivision 3. Minn. Stat. section 13.462, subd. 3 ( all other benefit data are private data on individuals ).</p> <p class="opinion_quote">. . . . To construe section13.462, subdivision 2, so broadly as to require even rental assistance families' names and addresses to be public data would be to give no effect to the general rule in subdivision 3 that benefit data on recipient families are private data on those families. But all parts of a statute must be given effect. Minn. Stat. sections 645.16-.17.</p> <p class="opinion_quote">Construing section 13.462, subdivision 2 as applicable to home-ownership benefits, rather than rental-assistance benefits, is consistent with the overall statutory scheme and the Legislature's long-standing intent to protect home addresses from disclosure by public agencies that collect or have that information. Other provisions of the Minnesota Government Data Practices Act require information concerning assisted families to remain confidential or private data on individuals and unavailable to the general public. See, e.g., Minn. Stat. section 13.585 (housing agency data, including income information on individuals). It would be absurd, and contrary to these privacy provisions, to protect income of tenant families as private data but release home addresses to the public, essentially identifying the families by income status as low income persons. See <em>Swenson v. Waseca Mut. Ins.</em>, 653 N.W.2d 794, 797 (Minn. App. 2002) (courts must not construe statutes to produce an absurd result, or clearly at odds with the policy of the legislation as a whole. ), <em>rev. denied</em> (Minn. Feb. 29, 2004). The Legislature has not supported identifying Minnesota families to the general public by income status. See Minn. Stat. section 645.16(6) (legislative intent may be ascertained by considering the consequences of a particular interpretation ).</p> <p>Prior to the 2003 amendment, section 13.462 classified, as public, data on individuals who applied for or received benefits to <u>purchase</u> housing or other real property through various housing programs. Historically, there were no income limits on qualification for those programs. Home rehabilitation and other programs (which provide assistance for, e.g., emergency aid for roofs and furnaces) typically did have income eligibility requirements.</p> <p>Due to the 2003 amendment, data about individuals who receive housing benefits for rehabilitation or purposes other than purchase, even when those programs have income eligibility requirements, are now classified as public. However, it is the Commissioner's understanding that the Legislature intended the 2003 amendment to treat data about property <u>owners</u> who applied for or received housing benefits for rehabilitation purposes consistently with data about individuals who received assistance to <u>purchase</u> housing or other real property, but did not intend for data about all individual housing benefit applicant/recipients, such as those receiving rental assistance, to be public.</p> <p>The Legislature did not define other purposes related to in its 2003 amendment to section 13.462, subdivision 2, and the dictionary definition of purposes is not helpful in this context. However, the relevant legislative history supports Ms. Brennan's analysis that the data in question are private under section 13.462. (IPAD staff relied, in part, on the recording of the Minnesota House Civil Law Committee hearing in which the 2003 amendment was heard, discussed, and approved.)</p> <p>The Commissioner is aware that there is disagreement with respect to the classification of the data in question, and acknowledges that the meaning of other purposes related to housing or other real property might be construed to include rental assistance. However, as Ms. Brennan discussed, all provisions of a statute must be given effect. (See sections 645.16 and 645.17.) The Commissioner agrees with Ms. Brennan's assertion that to construe section13.462, subdivision 2, so broadly as to require even rental assistance families' names and addresses to be public data would be to give no effect to the general rule in subdivision 3 that benefit data on recipient families are private . . .</p> <p>The Legislature has consistently acted to protect the identities of individual applicants for or recipients of various income-assistance programs. Had it intended to make such a significant departure from this long-standing policy, the Legislature could have been more explicit. Furthermore, in its 2003 amendment, the Legislature included clarifying language that specifically classifies as public the names and addresses of individual members of a housing benefit applicant or recipient that is a corporation or partnership, but it did not specifically classify as public the identities of individual applicants for or recipients of rental assistance.</p> <p>As Ms. Brennan discussed above, and as the Commissioner previously has opined, under Minnesota Rules, part 1205.0200, subpart 4, home addresses are data on individuals. Addresses of the scattered-site housing (including individual unit numbers of multi-unit housing) the Authority owns are private housing benefit data, pursuant to section 13.462, subdivision 3, because the data identify individuals who receive housing benefits for purposes of rental assistance. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267565" title="94-009" target="_blank">Advisory Opinion 94-009</a>.)</p> <p>In light of the confusion regarding the scope of the 2003 amendment, the Commissioner encourages the Legislature to clarify its intent.</p> <p>A final note: Ms. Brennan indicated that MHOP receives federal funding; she did not discuss and the Commissioner is not aware of any provision in federal law that applies to and thereby classifies housing benefit data that the Authority maintains.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Brennan raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.462, street addresses of rental properties, occupied by applicants or recipients of rental assistance benefits, which are owned by the Washington County Housing and Redevelopment Authority, are private data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 24, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676772663472668902022-01-19T19:23:20Z266258266271266263266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267861" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-06-16T15:14:43ZWould Independent School District 701, Hibbing, violate Minnesota Statutes, Chapter 13, if it released to the school district's Pupil Support Assistants (as a group), the following data about students with disabilities: name, disability of the student, and services to be provided to a student in accordance with an IEP?June 16, 2005; School District 701 (Hibbing)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 28, 2005, IPAD received a letter dated April 27, 2005, from John Colosimo, an attorney representing Independent School District 701, Hibbing. In his letter, Mr. Colosimo asked the Commissioner to issue an advisory opinion regarding whether the District's release of certain data would violate Minnesota Statutes, Chapter 13.</p> <p>A summary of the facts as provided by Mr. Colosimo is as follows. He wrote:</p> <p class="opinion_quote">AFSCME Council 65 is the exclusive representative of all non-certified employees of the Hibbing School District, including Pupil Support Assistants (PSAs). The PSAs are aides working with special education teachers to provide services to meet the needs of students with disabilities in accordance with the students' IEP [Individualized Education Plan].</p> <p class="opinion_quote">Up until the current school year, prior to the start of the educational year, the PSAs requested and received the name of each special needs student and the student's disability so as to allow the PSAs the opportunity to bid on the student (and assigned teacher) to whom services would be provided. The document containing this information would ostensibly be used only by the PSAs for that purpose. Since the level of service provided to each disabled student may differ and require different levels and hours of work, PSAs would be given the opportunity to select their own assignment.</p> <p class="opinion_quote">In August, 2004, the school district administration and special [education] director advised the PSAs that the name, disability, and services to be provided for each student would no longer be provided them because such a release would infringe upon federal and state laws pertaining to special needs students.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Colosimo's request for an advisory opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Would Independent School District 701, Hibbing, violate Minnesota Statutes, Chapter 13, if it released to the school district's Pupil Support Assistants (as a group), the following data about students with disabilities: name, disability of the student, and services to be provided to a student in accordance with an IEP?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Provisions of both Minnesota and federal law govern access to data about students and their parents. Minnesota Statutes, section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 C.F.R. Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.</p> <p>One exception is that private educational data can be released to individuals within the entity whose work assignments reasonably require access. (See Minnesota Rules, section 1205.0400.) The corresponding language in FERPA states that data can be released without consent if, The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. (See 34 C.F.R. section 99.31(a)(1).) Furthermore, 34 C.F.R. section 99.7(a)(3)(iii) states that if a district has a policy of disclosing records under section 99.31(a)(1), the district must include in its annual notification to parents a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.</p> <p>School districts also must consider the federal Individuals with Disabilities Act (IDEA) when the student in question has a disability. Of relevance here, IDEA generally follows the provisions of FERPA and states that in an educational institution, such as the District, parental consent must be obtained before personally identifiable information is disclosed to anyone other than officials of participating agencies. (See 34 C.F.R. section 300.571.) Also, each participating agency shall maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information. (See 34 C.F.R. section 572 (d).) Participating agency is defined as any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained. (See 34 C.F.R. section 300.560(c).)</p> <p>In his opinion request, Mr. Colosimo wrote:</p> <p class="opinion_quote">AFSCME Council 65 takes the position that disclosing the name, disability, and services to be provided to a special needs student to all of the PSAs is an internal posting which does not violate any of the aforementioned laws or statutes.</p> <p class="opinion_quote">The school district's position is that the release of the data and information to the PSAs - as a group - regarding the teacher/student would be inappropriate if not illegal. Until an individual PSA is assigned to work with a specific student with disabilities, he/she has no legitimate educational interest in data or information involving that student. To give all of the PSAs the identities and disabilities of every student receiving services would give them data which is otherwise private on or about students with whom they may never be working and about whom they have no educational interest.</p> <p class="opinion_quote">The school district believes that the disclosure of this information could result in special ed sanctions and a due process complaint by the parents of the students with disabilities. The release of this information would violate the student's IEP and also the Individuals with Disabilities Education Act (IDEA) and the Family Educational Rights and Privacy Act.</p> <p>In analyzing Mr. Colosimo's question, the Commissioner reviewed language in FERPA as well as information from the Family Policy Compliance Office (FPCO) of the United States Department of Education. The FPCO implements FERPA and another federal educational law, both of which seek to ensure student and parental rights in education. As part of its work, the FPCO handles complaints from parents and students regarding FERPA.</p> <p>The following is contained in FPCO's <em>Model Notification of Rights for Elementary and Secondary Schools</em>:</p> <p class="opinion_quote">... One exception, which permits disclosure without consent, is disclosure to school officials with legitimate educational interests. A school official is a person employed by the School as an administrator, supervisor, instructor, or support staff member (including health or medical staff and law enforcement unit personnel); a person serving on the School Board; a person or company with whom the School has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibilityhellip;.</p> <p>Also distributed by FPCO is a document entitled, <em>Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies</em>, National Forum on Education Statistics, NCES 2004-330. Washington, DC: 2004. This document provides some relevant guidance:</p> <p class="opinion_quote">In determining the school officials who might need access to education records, it is more practical to establish broad position criteria than to list exactly who, or what individual positions, qualify. General criteria such as the following might be useful:</p> <p class="opinion_quote">- a person employed by the agency or school in an administrative, counseling, supervisory, academic, student support services, or research position, or a support person to these positions; or</p> <p class="opinion_quote">- a person employed by or under contract to the agency or school to perform a special task.</p> <p class="opinion_quote">Identifying a person as a school official does not automatically grant him or her unlimited access to education records. The existence of a legitimate educational interest may need to be determined on a case-by-case basis. A sample policy statement of what constitutes legitimate educational interest might include substantiation such as the following:</p> <p class="opinion_quote">- the information requested if necessary for that official to perform appropriate tasks that are specified in his or her position description or by a contract agreement.</p> <p class="opinion_quote">- the information is to be used within the context of official agency or school business and not for purposes extraneous to the official's areas of responsibility or to the agency or school.</p> <p class="opinion_quote">- the information is relevant to the accomplishment of some task or to a determination about the student.</p> <p class="opinion_quote">- the information is to be used consistently with the purposes for which the data are maintained.</p> <p>In the case at hand, Mr. Colosimo did not provide information regarding whether the District, in its annual notification, has defined PSAs as school officials with legitimate educational interest. If the District has not, it should do so promptly.</p> <p>As to whether all the PSAs have a legitimate educational interest in private data about each of the District's special needs students, it seems, based on the guidance provided in the <em>Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies</em>, that individual PSAs should have access only to the private data of students with whom those PSAs will have interaction as part of their work. The specifics of who gets access to what data is up to the District to determine as the District has authority, as well as an obligation, to establish policies about which officials/employees have legitimate educational interests to private data. Mr. Colosimo did assert that some of the PSAs might never work with some of the special needs students. Thus, it would seem inappropriate for the District to release private data about students to PSAs who have no educational interest in the information.</p> <p>Mr. Colosimo specifically mentioned the process of assigning PSAs to special needs students. If the District can make those assignments without releasing private data about individual students to PSAs who will not have interaction with those students as part of their work assignments, it should do so. If, however, the process requires all PSAs to have access to identifying data about all the special needs students, the District should clearly state that in its policy relating to legitimate educational interest.</p> <p>Finally, the District must heed the provision in IDEA that requires a current listing of the names and positions of those employees within the District who may have access to personally identifiable data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Colosimo raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Independent School District 701, Hibbing, would not be in compliance with Minnesota Statutes, Chapter 13, if it released the following data about students with disabilities - name, disability, and services to be provided in accordance with an IEP - to PSAs whose work assignments do not require that they gain access and who have no legitimate educational interest in the data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 16, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678612663162663392663182663402666202022-01-19T19:23:20Z266258266263266315266309266309266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267386" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-06-10T15:14:43ZDo routine, written K-12 classroom tests and quizzes which are completed by students and count toward their grade for the class fall within the definition of "academic examinations" for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would only have the access rights accorded by section 13.34? Would Independent School District 196, Rosemount-Apple Valley-Eagan, be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter?June 10, 2005; School District 196 (Rosemount-Apple Valley-Eagan)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 18, 2005, IPAD received a letter dated same, from Jill Coyle, an attorney representing Independent School District 196, Rosemount-Apple Valley-Eagan. In her letter, Ms. Coyle asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains. IPAD staff requested clarification, which Ms. Coyle provided in a letter dated April 22, 2005.</p> <p>A summary of the facts is as follows. The issues Ms. Coyle raise relate to Minnesota Statutes, section 13.34, which classifies examination data. In her opinion request, Ms. Coyle wrote:</p> <p class="opinion_quote">An individual from outside the School District has suggested that the parents of minor students should always be entitled to receive copies of the completed tests of their children, notwithstanding the provisions of [section 13.34]. In doing so, the individual has specifically questioned the validity of [section 13.34] as it pertains to K-12 classroom examinations. This inquiry regarding the validity of [section 13.34] has prompted the School District's request for an opinion. It is the School District's position that [section 13.34] is valid and that the parents of minor students are not generally entitled to receive copies of completed tests taken by their children.</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Ms. Coyle's opinion request, the Commissioner asked the Commissioner to address the following issues:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Do routine, written K-12 classroom tests and quizzes which are completed by students and count toward their grade for the class fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would only have the access rights accorded by section 13.34?</li> <li>Would Independent School District 196, Rosemount-Apple Valley-Eagan, be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter?</li> </ol> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Do routine, written K-12 classroom tests and quizzes which are completed by students and count toward their grade for the class fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would only have the access rights accorded by section 13.34?</em></p> <p>Minnesota Statutes, section 13.04, generally provides that data subjects have the right to inspect or obtain copies of data about themselves. Thus, a student who is a minor, and his/her parents, have the right to gain access to educational data about that student. (See sections 13.32 and 13.02, subdivision 8.) However, section 13.34 permits government entities to withhold certain information relating to academic examinations:</p> <p class="opinion_quote">Data consisting solely of testing or examination materials, or scoring keys used solely to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic, except pursuant to court order. Completed versions of personnel, licensing, or academic examinations shall be accessible to the individual who completed the examination, unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process. Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination.</p> <p>In analyzing Ms. Coyle's question, the first issue is whether section 13.34 applies to the type of academic examinations she describes. Section 13.34 does not define the term academic examination. Minnesota Statutes, section 645.08, provides that words and phrases are to be construed according to their common and approved usage. <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines academic as, of, relating to, or associated with an academy or school esp. of higher learning, and examination as, an exercise designed to examine progress or test qualification or knowledge. The Commissioner, in looking to the common and approved usage of academic examination, concludes that section 13.34 does apply to routine, written K-12 classroom tests and quizzes, which are completed by students and count toward their grades.</p> <p>The second issue is resolving the apparent conflict between section 13.04 and section 13.34. Section 645.26 provides that when a general provision in a law is in conflict with a specific provision, and the conflict is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision. Here, section 13.34 appears to be a special provision that is an exception to section 13.04. In addition, when the Legislature enacted section 13.34, it clearly was aware of the conflict and added the following language, <em>Notwithstanding section 13.04</em>, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination. (Emphasis added.) This suggests the Legislature intended section 13.34 to be an exception to section 13.04.</p> <h2>Issue 2:</h2> <p><em>Would Independent School District 196, Rosemount-Apple Valley-Eagan, be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter?</em></p> <p>In her opinion request, Ms. Coyle wrote, The [District's] second question is whether Minn. Stat. section 13.34 has the potential to conflict with federal law governing access to student data, and, if so, how such a potential conflict should be reconciled. Generally, federal law preempts state law, which, in this case, means that state law, specifically section 13.34, cannot place further restrictions on the rights of a minor student, or his/her parents, to gain access to data about the student.</p> <p>Federal law addresses access to student records in both the Family and Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities in Education Act (IDEA). Generally, FERPA applies to all students attending educational institutions that receive funding from the federal Department of Education, and IDEA applies to children with disabilities. Except in a few situations not applicable here, FERPA provides that a parent or student must be given the opportunity to inspect and review the student's education record. (See 34 C.F.R. section 99.10(a).)</p> <p>Providing copies of an education record is discussed in 34 C.F.R. section 99.10(d):</p> <p class="opinion_quote">If circumstances effectively prevent the parent or student from exercising the right to inspect and review the student's education records, the educational [institution]... shall-</p> <p class="opinion_quote">(1) Provide the parent or eligible student with a copy of the records requested or;</p> <p class="opinion_quote">(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.</p> <p>IDEA contains a similar provision. (See 34 C.F.R. section 300.562.)</p> <p>In her opinion request, Ms. Coyle wrote:</p> <p class="opinion_quote">... Neither law requires that copies be provided except in rare situations in which circumstances effectively prevent the parents from physically exercising the right to inspect and review... (e.g., significant distance from school, parental disability or serious illness, extended travel, lack of transportation). In these atypical circumstances, a school district must either provide the copies or, under FERPA, make other arrangements for the parents to inspect and review the records.</p> <p>Ms. Coyle noted, For purposes of this request for an opinion, assume that the rare circumstances that may necessitate copies under federal law do not apply.</p> <p>She further wrote:</p> <p class="opinion_quote">In School District 196, when parents are not provided with copies of completed examinations due to security concerns, they (and their child) are permitted to come to school to access to [sic] the completed tests through in-school inspection. This approach would appear to comply with both state and federal law regarding access to completed tests.</p> <p>Ms. Coyle attached to her opinion request a copy of a memorandum prepared by the Minnesota Department of Education dated May 24, 2004. It is addressed to, Directors of Special Education, Other Interested Parties. The subject is, Test Protocols: Access and Retention. In the section entitled, Test Protocols as Educational Data, the Department wrote:</p> <p class="opinion_quote">... The Family Policy and Compliance Office (FPCO), the federal office responsible for implementation of FERPA, determined in a <em>Letter to Thomas</em> that test protocols, as educational data, may be accessible to the parents under the following conditions:</p> <p class="opinionquoteinquote">1. If the test questions and answers are both personally identifiable to the student (that is, if the answers appear on the same sheet as the questions, and are identified by the student's name), the parents have a right to inspect both the questions and answers.</p> <p class="opinionquoteinquote">2. If the questions are separate from the answers, and only the answers are personally identifiable to the student, the parent has the right of access to the answers only. However, since 34 C.F.R. section 99.10 also requires an agency to respond to a reasonable request for explanation or interpretation of the record, the agency would have to inform the parent of the questions, if so requested, in order to explain the answers to the questions.</p> <p class="opinion_quote">(See <em>Letter to Thomas</em>, 211 IDELR 240 (FPCO 1986).)</p> <p class="opinion_quote">Accordingly, if a school were to maintain a copy of a student's test answer sheet (an 'education record'), the parent would have a right under Part B [of IDEA] and FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school district could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent. 34 C.F.R. section 300.562 (discussion).</p> <p>In the section of the memo entitled, Providing Copies of Test Protocols and Educational Data, the Department wrote:</p> <p class="opinion_quote">The district is not unequivocally obliged to distribute copies of test protocols containing educational data to the parents unless failure to do so would effectively prevent the parents from exercising their right to inspect and review. 34 C.F.R. section 300.562(b)(2). In other words, if parents are physically unable to inspect and review the educational data about their child, the district must provide copies of the data to them. The U.S. Department of Education has interpreted this to mean that a parent shall receive copies of the records when he or she lives too far from the school district to see the records in person. <em>Letter to Anonymous</em>, 213 IDELR 188 (OSERS 1989) and <em>Letter to Kincaid</em>, 213 IDELR 271 (OSERS 1989). The parent also might be prevented from exercising the right to inspect and review for other reasons, such as a disability, lack of transportation, etc. Representatives from the district may use their own judgment regarding whether a parent is effectively denied access, but should take the above examples into consideration when making this determination.</p> <p>Thus, in the situation presented by Ms. Coyle, it appears that, beyond those contemplated in federal law, section 13.34 does not place restrictions on a data subject's right to gain access to data. It appears, therefore, that if the District elects not to provide copies of completed tests and quizzes to data subjects, the District will be in compliance with state and federal law as long as it provides data subjects an opportunity to inspect and review the data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Ms. Coyle raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Routine, written K-12 classroom tests and quizzes, which are completed by students and count toward their grade for the class, fall within the definition of academic examinations for purposes of Minnesota Statutes, section 13.34, such that a student who completed such an examination (and the parents of minor students) would have only the access rights accorded by section 13.34.</li> <li>Independent School District 196, Rosemount-Apple Valley-Eagan, would be in compliance with Minnesota Statutes, Chapter 13, and federal law if it declined to provide students (and the parents of minor students) with copies of their completed tests and quizzes, but provided them with access to their completed examinations by allowing them to inspect and review the completed tests and quizzes in school under the circumstances described in the analysis section of the School District's April 18, 2005, letter.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: June 10, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673862663162669282669282664672663122662662022-01-19T19:23:19Z266258266259266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267195" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-05-20T15:14:43ZIs Resource Training and Solutions in compliance with Minnesota Statutes, Chapter 13, by requiring a data requestor to inspect data at its attorney's office, which is located in a different city?May 20, 2005; Resource Training and Solutions36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 14, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS) maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director of RTS, in response to Mr. Leyk's request. The purposes of this letter, dated April 21, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On April 26, 2005, IPAD received a response, dated same, from Thomas Pursell, an attorney representing RTS.</p> <p>A summary of the facts is as follows. A dispute over RTS' response to a data request by Mr. Leyk is the subject of a previous advisory opinion, 05-011. Subsequent to the opinion, Mark Kinney, an attorney representing RTS, wrote to Mr. Leyk in a letter dated March 16, 2005:</p> <p class="opinion_quote">I am writing in response to your request for nonpublic documents pertaining to the health insurance pool and the annual audit of [RTS]. It is our intent that this response conform to the Opinion of the Commissioner of Administration dated March 14, 2005hellip;</p> <p>Mr. Kinney stated that RTS was making certain data available for Mr. Leyk's review. He wrote, We will make all public data you requested available for inspection at [the Lindquist Vennum law offices in Minneapolis].</p> <p>In his opinion request, Mr. Leyk wrote:</p> <p class="opinion_quote">Under Minnesota Statute Chapter 13hellip;the inspection of public data will be At reasonable times and places (MN Stat. 13.03, subd. 3). By moving this inspection to an independent contractor of RTS in Minneapolis, MN, they appear to violate the language and intent of Chapter 13hellip;.What would prevent a Minnesota Government Agency from hiring a law firm, or other entity, from a different state and claiming that site will be the inspection location?</p> <p>(Mr. Leyk and RTS are located in the St. Cloud, MN, area, approximately 60 minutes northwest of Minneapolis.)</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Leyk's request for an advisory opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Is Resource Training and Solutions in compliance with Minnesota Statutes, Chapter 13, by requiring a data requestor to inspect data at its attorney's office, which is located in a different city?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Before proceeding, the Commissioner notes there is no dispute that RTS is a service cooperative pursuant to Minnesota Statutes, section 123A.21, and as such, is subject to the provisions of Chapter 13.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government entities are required to keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. In addition, subdivision 3 of section 13.03 provides that persons shall be permitted to inspect and copy public government data at reasonable times and places.</p> <p>In his comments to the Commissioner, Mr. Pursell cited section 13.03, subdivision 3, and wrote:</p> <p class="opinion_quote">The statute conspicuously does not require this inspection at the agency's offices. When the Legislature intends such a result, it knows how to say so... The obvious answer to Mr. Leyk's what if scenario is that making records available to a Minnesota resident through a law firm in another state would probably not meet the statutory reasonableness test. [Emphasis provided.]</p> <p class="opinion_quote">... In this instance, reviewing records at the law office will have two advantages. In the past, Mr. Leyk has sought non-public data. Many of his questions are likely to require judgment calls about what is public under the statute. These questions will require the advice of counsel, and are better made in the law office than requiring outside counsel to travel to the agency's office. Review at the law office will also avoid disrupting the agency's functioning...</p> <p>Here, RTS is the involved government entity. As such, it is subject to certain requirements in Chapter 13, namely - for purposes of this opinion - maintaining government data so they are easily accessible for convenient use and providing opportunities, at reasonable times and places, for data requestors to inspect and copy data.</p> <p>Mr. Pursell (and his law firm), in his role as RTS' attorney, apparently is in possession of some of the data Mr. Leyk requested. The Commissioner, having not received any information regarding the contractual relationship between RTS and Mr. Pursell, assumes that RTS, not Mr. Pursell, is the entity responsible for ensuring a proper response to Mr. Leyk's data request. If Mr. Pursell's law firm were located relatively close to the offices of RTS, it would be reasonable for RTS to require Mr. Leyk to inspect the data at the law firm. This is not the case, however, as the law offices are located some 60 miles away. Pursuant to Chapter 13, RTS is obligated to provide the data to Mr. Leyk at reasonable times and places. Here, it is not reasonable for RTS to require him to go to Minneapolis to gain access to the data.</p> <p>A final note is appropriate. In his comments, Mr. Pursell wrote that it would be advantageous for Mr. Leyk to travel to Mr. Purcell's office because many of Mr. Leyk's questions are likely to require judgment calls about what is public under the statute and that [such] questions will require the advice of counsel. To clarify, RTS is obligated under Chapter 13 to provide Mr. Leyk with access to the public data he requested. Either RTS does or does not have public data for him to inspect. Whether or not public data exist is not a matter Mr. Leyk should need to discuss with Mr. Purcell. In addition, if Mr. Leyk has questions about the public data RTS provides, RTS is obligated to inform him of the meaning of the data. (See section 13.03, subdivision 3(a).)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Leyk raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Resource Training and Solutions is not in compliance with Minnesota Statutes, Chapter 13, in requiring a data requestor to inspect data at its attorney's office, which is located in a different city.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 20, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2671952666672662602022-01-19T19:23:19Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267390" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-05-16T15:14:43ZWould the Winona Housing and Redevelopment Authority (HRA) be in compliance with Minnesota Statutes, Chapter 13, if it provides a complainant access to data that consist of an "investigator's notes and interview summaries regarding interviews of individuals who have made complaints, either orally or in writing, against employees of the entity"?May 16, 2005; Winona Housing and Redevelopment Authority36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On April 12, 2005, IPAD received a letter from Ann R. Goering, an attorney, on behalf of the Winona Housing and Redevelopment Authority (HRA.) In her letter, she asked the Commissioner to issue an advisory opinion regarding a complainant's right to gain access to certain data that the HRA maintains. IPAD asked Ms. Goering for clarification, which she provided on April 18, 2005. A summary of the facts as provided by Ms. Goering follows. </p><p> According to Ms. Goering, the HRA investigated a complaint made against HRA employees. As of the date of her request, the HRA had not taken disciplinary action against any of them, and therefore the documents related thereto are classified as private personnel data pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(4) and (5), and subdivision 2(b). </p><p> Ms. Goering stated, [t]here remains, however, a question as to whether the interview summary of the complainant constitutes a 'statement' for purposes of section 13.43, subdivision 2(d). Ms. Goering wrote that her opinion request relates only to investigators notes and interview summaries, and [a] written complaint made by an individual would, in our opinion, constitute a 'statement' for purposes of that statutory provision. </p><p> She wrote: </p><p class="opinion_quote"> . . . interview summaries of an investigator . . . are not verbatim and are not signed by the complainant. The investigator's notes and summaries are based on decisions by the investigator as to which comments are relevant to the investigation, the order and emphasis as to how the information is recorded and subsequently reported, it [sic] uses the investigator's words to express what was said by the complainant rather than a verbatim transcript, and filters out unnecessary information. </p><p class="opinion_quote"> In making a decision as to whether such summaries are 'statements' the HRA recognizes that the investigation summaries are private data on the employee being investigated, not the complainant, and that the complainant's access is an exception to the classification of the data as private personnel data. </p><hr /><br /><h2> Issue: </h2><p> Based on Ms. Goering's request for an opinion, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td height="98" id="opinion_issuebox">Would the Winona Housing and Redevelopment Authority (HRA) be in compliance with Minnesota Statutes, Chapter 13, if it provides a complainant access to data that consist of an investigator's notes and interview summaries regarding interviews of individuals who have made complaints, either orally or in writing, against employees of the entity ?</td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Data on individuals collected because the individual is or was an employee of a government entity are classified pursuant to Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public; under subdivision 4, most other types of personnel data are private. </p><p> The existence and status of any complaint or charge against an employee are public data. If the government entity takes disciplinary action against an employee, and a final disposition of the disciplinary action has occurred, then additional data become public. (See section 13.43, subdivision 2(a)(4) and (5).) According to Ms. Goering, the HRA has not taken disciplinary action against any employee in connection with the complaint/allegations here. Therefore, the existence and status of the complaints or charges are the only associated data that are public. </p><p> Ms. Goering stated that the HRA has determined that the subjects of the data in question are the employees under investigation, not the complainant. Generally speaking, private data are accessible only to the data subject and others authorized to gain access to private data. However, subdivision 2(d) of section 13.43 provides, a complainant has access to a statement provided by the complainant to a [government entity] in connection with a complaint or charge against an employee. </p><p> Section 13.43 does not define statement. The definition of that term in <i>The American Heritage College Dictionary</i>, Third Edition, Houghton Mifflin Company, Boston 1997, is [t]he act of stating or declaring; something stated; a declaration. In addition, provided means to furnish; supply. </p><p> According to Ms. Goering, the data in question, i.e., notes and summaries that were created by the investigator, do not include a written complaint made by an individual, or a verbatim recording, which she stated would, in our opinion, constitute a 'statement' for purposes of section 13.43, subdivision 2(d). Rather, the investigator created the data in the course of his/her investigation, which are based on decisions by the investigator about what data to record and report. </p><p> Section 13.43, subdivision 2(d), provides a complainant with access to the statement the <u>complainant provided</u>to the government entity. The data at issue here do not satisfy that requirement. Therefore, the data in question are private personnel data that are not accessible to the complainant. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Ms. Goering raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Winona Housing and Redevelopment Authority (HRA) would not be in compliance with Minnesota Statutes, Chapter 13, if it provides a complainant access to data that consist of an investigator's notes and interview summaries, because those data are private personnel data about employees other than the complainant, and are not a statement provided by the complainant for purposes of section 13.43, subdivision 2(d).</td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: May 16, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2673902667512666262022-01-19T19:23:19Z266258266315266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267478" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-05-11T15:15:43ZDid the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data about a former City employee?May 11, 2005; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On March 18, 2005, IPAD received a letter, dated same, from Tim Nelson, a reporter for the <em>Saint Paul Pioneer Press</em>. In the letter, Mr. Nelson asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the City of Saint Paul maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Donald Luna, City Clerk, in response to Mr. Nelson's request. The purposes of this letter, dated March 25, 2005, were to inform him of Mr. Nelson's request and to ask him to provide information or support for the City's position. On April 14, 2005, IPAD received a response, dated same, from Gail Langfield, Assistant City Attorney.</p> <p>A summary of the facts is as follows. In an email dated March 9, 2005, Mr. Nelson wrote to the City and asked for certain data regarding Gina LaForce, the former head of the City's public library system:</p> <p class="opinion_quote">I am writing to request a copy of [Gina LaForce's] letter of resignation... as well as any paperwork, email or documentation related to the following:</p> <p class="opinion_quote">1. The existence and status of any complaints or charges against LaForce, regardless of whether the complaint or charge resulted in a disciplinary action;</p> <p class="opinion_quote">2. The final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action</p> <p class="opinion_quote">3. The terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement or termination pay. If the payment involves more than $10,000 of public money, please include the specific reasons for the agreement.</p> <p>Deputy Mayor Dennis Flaherty responded in a letter dated March 10, 2005:</p> <p class="opinion_quote">... There was a complaint against Ms. LaForce. Its status is that it was investigated and the investigation was completed. By law, specifically Minnesota Statutes section13.43, subd. 4, I cannot release nor comment upon any documentation related to the complaint. There is no final disposition of any disciplinary action. I have enclosed the March 7, 2005, resignation of Ms. LaForce along with documentation necessary for her to obtain her severance benefits.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Nelson's request for an advisory opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data about a former City employee?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Government data about current and former employees are classified at Minnesota Statutes, section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.</p> <p>Also, section 13.43, subdivision 2(e), states:</p> <p class="opinion_quote">... upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources. For purposes of this paragraph, public official means: <br /> 1) the head of a state agency and deputy and assistant state agency heads; <br /> 2) members of boards or commissions required by law to be appointed by the governor or other elected officers; and <br /> 3) executive or administrative heads of departments, bureaus, divisions, or institutions.</p> <p>In his opinion request, Mr. Nelson argued that the City did not release as much information as is required. He relied upon an unpublished United States District Court, District of Minnesota case, <em>Burns v. City of Minneapolis</em>, U.S. District Court, District of Minnesota (Civil No. 00-577, 2001), and argued that (1) the City should have detailed the nature of the allegations against Ms. LaForce, and (2) the City should have released all data relating to the complaint because Ms. LaForce was a public official as that term is defined in section 13.43.</p> <p>Regarding whether the City was required to release details about the nature of the allegations, Ms. Langfield wrote:</p> <p class="opinion_quote">... Mr. Nelson's reliance upon <em>Burns</em> is misplaced. First, in <em>Burns</em> the court has confused when reasons should be provided. According to statute, specific reasons for disciplinary action are to be provided if and only when there is a final disposition of disciplinary action...</p> <p>Ms. Langfield also cited a Minnesota Supreme Court case, <em>Navarre v. South Washington County Schools</em>, 652 N.W.2d 9 (Minn. 2002), which was issued after the <em>Burns</em> decision. In <em>Navarre</em>, the Court held:</p> <p class="opinion_quote">... a government entity's public comments before final disposition of any disciplinary action are limited to the possible existence of a complaint or complaints or charges against the government employee. Any disclosure by the government entity during the investigation that describes any quality or characteristic of the complaint, whether general or specific, goes beyond the mere existence of the complaint, and therefore violates section 13.43, subdivision 2(a)(4). <em>Navarre</em> at 22-23.</p> <p>The Commissioner agrees with the City's position and finds the analysis in <em>Burns</em> distinguishable from the current situation. In <em>Burns</em>, the Court appears to suggest that statements appearing in two newspaper articles that were attributed to the City of Minneapolis did not directly connect the police officers under investigation with the fact that Minneapolis was investigating the mounted patrol's finances. The Court wrote:</p> <p class="opinion_quote">The December 5, 1997 newspaper article reported the existence and status of an investigation into the mounted patrol's financial management... That specific reasons and data documenting the basis for an investigation cannot be released to the public until after a final disposition does not mean the public may be informed of <em>no reasons at all</em> for the investigation... .No reasonable reading of the articles could indicate that the City improperly released personnel data on [one of the defendants]. Emphasis provided. <em>Burns</em>, slip opinion at 16.</p> <p>The Court also stated, Defamatory meaning attributable to Defendants cannot be found on the face of this [newspaper article]. Nor can defamatory meaning be drawn from Olson's remarks by implication. <em>Burns</em>, slip opinion at 8.</p> <p>Here, the facts are clear that Mr. Nelson asked for data about Ms. LaForce. There is no question that she is the subject of any data the City releases in response. In such situations, the Commissioner consistently has opined that details about a complaint or charge cannot be released until there has been a final disposition of the matter. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267528" title="94-042" target="_blank">Advisory Opinion 94-042</a>, the Commissioner wrote:</p> <p class="opinion_quote">... The current language of [section 13.43] section declares a legislative policy that balances two strongly competing interests. The public has an important interest in knowing how government entities are handling and have handled complaints and charges that are made against public employees. On the other hand, public employees have strong reputational and other interests in not having unsubstantiated and potentially false complaints or charges made against them disclosed to the public. The legislature has achieved that balance by saying that certain data about complaints or charges against public employees will always be public but certain other data, and particular details concerning a given complaint or charge against a public employee, will not become public unless and until there is a final disposition of a disciplinary action against the employee.</p> <p>In this particular balancing of interests, the public is able to find out that charges or complaints have been made against an employee and how the government entity is handling those complaints or charges. If a final disciplinary action is imposed on the employee, the public will also be able to learn the details of the action itself and why the action was taken, including all data that supports the action. If no disciplinary action is imposed or if a proposed disciplinary action is overturned because the employee grieved a proposed disciplinary action under a collective bargaining agreement, the employee's interest is protected because there is very limited dissemination to the public of any details about the allegations.</p> <p>Further, in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267431" title="04-047" target="_blank">Advisory Opinion 04-047</a>, the Commissioner wrote:</p> <p class="opinion_quote">The Commissioner has the following comments. At the point in time Chief Johnson stated that X had been suspended, a final disposition had not occurred. Thus, pursuant to section 13.43, subdivision 2(a)(4), data relating to the existence and status of the complaint/charge were public, but data relating to any disciplinary action taken against X were not public.</p> <p class="opinion_quote">Although the word status is not defined in section 13.43, or elsewhere in Chapter 13, the Minnesota Supreme Court used the following definition in a recent case: [a] stage of progress or development. (See <em>Navarre v. South Washington County Schools</em>, 652 N.W.2d, 9, 22 (Minn . 2002) (footnote 4).) In <em>Navarre</em>, the Court cited <em>The American Heritage Dictionary College Edition</em>, 1309 (2d ed. 1982). Thus, the status of a complaint against an employee means whether the complaint has been filed, is under investigation, is closed, no discipline was imposed, or similar descriptions of the stages in an entity's investigatory process. By releasing only data explaining the status of a complaint/charge in response to a data request, the government entity is able to inform the public what it is doing or has done in response to a complaint while simultaneously protecting the rights of employees who are the subjects of the complaint.</p> <p>Regarding whether Ms. LaForce was a public official for purposes of section 13.43, subdivision 2(e), and, therefore, that all data regarding the complaint are public, Ms. Langfield cited <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267374" title="01-083" target="_blank">Advisory Opinion 01-083</a>, in which the Commissioner wrote:</p> <p class="opinion_quote">The Legislature originally enacted part of [section 13.43, subdivision 2(e)] in 1995. At that time, the definition of public official was the head of a state agency and deputy and assistant agency heads. (See Minnesota Laws 1995, Chapter 259, Article 1, Section 7).</p> <p class="opinion_quote">In 1996, the Legislature amended the provision by adding the language in clauses (2) and (3). (See Minnesota Laws 1996, Chapter 440, Article 1, Section 10.)</p> <p class="opinion_quote">IPA staff attended and testified at the Legislative hearings in 1995 and 1996 during which discussions about section 13.43, subdivision 2(e) occurred. There is no question that this provision applies only to state agencies, which are defined at section 13.02, subdivision 17, as the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state. The Legislature considered including local levels of government but did not do so.</p> <p class="opinion_quote">Therefore, for purposes of classifying data under section 13.43, subdivision 2(e), the Clay County Sheriff is not a public official.</p> <p>Ascertaining legislative intent is one way to interpret laws. Minnesota Statutes, section 645.16, states, The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Here, the legislative history, as discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267374" title="01-083" target="_blank">01-083</a>, indicates that the provisions of section 13.43, subdivision 2(e), do not cover Ms. LaForce, contrary to the decision in <em>Burns</em>. The Commissioner follows the legislative intent and concludes that the City was not required to release all data relating to the complaint or charge.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Nelson raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The City of Saint Paul did comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data about a former City employee.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 11, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674782668912663772668732022-01-19T19:23:18Z266258266775266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267417" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-05-11T15:14:43ZDid the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for "copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations]"? Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in refusing to release certain data in emails relating to a specific City employee?May 11, 2005; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On March 18, 2005, IPAD received a letter dated same, from Tim Nelson, a reporter for the <em>Saint Paul Pioneer Press</em>. In his letter, Mr. Nelson asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the City of Saint Paul maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Donald Luna, City Clerk, in response to Mr. Nelson's request. The purposes of this letter, dated March 25, 2005, were to inform him of Mr. Nelson's request and to ask him to provide information or support for the City's position. On April 14, 2005, IPAD received a response, dated same, from Gerald Hendrickson, Deputy City Attorney.</p> <p>A summary of the facts as Mr. Nelson provided them is as follows. In an email dated February 6, 2005, Mr. Nelson wrote, We would like to see Sia Lo's personnel file, as well as any other written or recorded records of any complaints against him in the city's possession.</p> <p>In an email to the city dated February 11, 2005, Mr. Nelson amended and clarified his February 6, 2005, request. Of relevance to this opinion, he asked for:</p> <p class="opinion_quote">1. Any email in the city's possession regarding Sia Lo's work on the Hmong Funeral home; any other electronic communications he or any other city employees had regarding that project and Song Lo Fawcett, J. Kue Vang, Kue Vang, JB Realty, Cha Vang, the St. Paul Port Authority, the Vang Pao Foundation, the Kelly and Fawcett law firm Kamp;F Acquisitions, Kamp;F Development or Kurt Schultz; any email detailing allegations against Lo brought by city employees or non-city employees.</p> <p class="opinion_quote">2. Any documents in the city's possession regarding Sia Lo's work on the Hmong Funeral Home; any other paper communications or records in the possession of Lo or any other city employees had regarding that project,... any paper communications between Song Lo Fawcett, J. Kue Vang, Cha Vang, the St. Paul Port Authority, or... Kurt Schultz; any email detailing allegations against Lo brought by city employees or non-city employees...</p> <p class="opinion_quote">5. I would like a copy of Sia Lo's city personnel file, including any allegations of wrongdoing lodged against him... and the accuser; any disciplinary records, training or counseling documents and job descriptions.</p> <p class="opinion_quote">6. I would like copies of any requests for public information under [Chapter 13] that you receive from any other... ;media organizations...</p> <p>The City responded in an email dated March 3, 2005.</p> <p class="opinion_quote">This is in response to your request for a written justification for not providing access to the personal e-mails of Sia Lo, an employee of the City of Saint Paul. This correspondence explains more fully what I told you verbally earlier.</p> <p class="opinion_quote">The Office of the City Attorney advised me that Mr. Lo's personal e-mails were not subject to disclosure under Minnesota law.</p> <p class="opinion_quote">Where, as in Saint Paul, city policy allows for incidental personal use of the city e-mail system, and where the employee does not create or maintain an e-mail in his capacity as a government employee, the e-mails are personal, and not government data subject to disclosure...</p> <p class="opinion_quote">The City of Saint Paul Internet Access and E-Mail Policy does allow for incidental personal use of the city e-mail system by employees. Thus those e-mails on Mr. Lo's computer that were not created or maintained in his capacity as a city employee are personal, not governmental data.</p> <p class="opinion_quote">We carefully reviewed all of Mr. Lo's e-mails. We gave you all those e-mails that were created or maintained by him in his capacity as a city employee or relating to his governmental duties. The only documents which we did not provide to you are those that do not fit these standards. It is our belief that the law makes these his personal e-mail messages, not government data. That is they are his, not the City's, so we are not authorized to release them.</p> <p class="opinion_quote">I also want to make it clear to you that Mr. Lo's duties included working on the Hmong funeral home matter. Consequently, we gave you all of Mr. Lo's e-mails dealing with that subject...</p> <hr /> <br /> <h2>Issues:</h2> <p>Based on Mr. Nelson's opinion request, the Commissioner agreed to address the following issues:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">1. Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations] ? <p>2. Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in refusing to release certain data in emails relating to a specific City employee?</p> </td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion: <br /></h2> <h2>Issue 1:</h2> <p><em>Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations] ?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comments to the Commissioner, Mr. Hendrickson wrote:</p> <p class="opinion_quote">At the time of Mr. Nelson's request for data, the City intended to provide him with the copies of other media organizations' request [sic], but through inadvertence, failed to do so. This first came to our attention in your letter to Mr. Luna. Thereafter, the City provided this data to Mr. Nelson along with an apology.</p> <p>Mr. Hendrickson provided a copy of the April 7, 2005, letter the City sent to Mr. Nelson.</p> <p>Mr. Nelson requested the data on February 11, 2005. Two months later, the City mailed him the data. Such a response time is not reasonable and therefore the City did not comply with Chapter 13.</p> <h2>Issue 2:</h2> <p><em>Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in refusing to release certain data in emails relating to a specific City employee?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>, the Commissioner noted there are situations in which a government entity may be in possession of data that are beyond the purview of Chapter 13. For example, if an entity has a policy that allows for personal use of Internet access, email, or 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. The Commissioner wrote:</p> <p class="opinion_quote">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.</p> <p>(See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267577" title="02-003" target="_blank">02-003</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267650" title="02-049" target="_blank">02-049</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267767" title="04-030" target="_blank">04-030</a>.)</p> <p>In his comments to the Commissioner, Mr. Hendrickson wrote:</p> <p class="opinion_quote">Your division, in [<a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267561" title="01-075" target="_blank">Advisory Opinion 01-075</a>], takes the position that the mere fact that e-mail records are on a city-owned computer does not make the e-mail government data subject to [Chapter 13]. The touchstone of the analysis in that opinion depends on what the City has authorized for personal use. Where, as in Saint Paul, city policy allows for incidental personal use of the city e-mail system, and where the employee does not create or maintain an e-mail message in his capacity as a government employee, an e-mail message is personal, and not government data subject to disclosure...</p> <p class="opinion_quote">The City of Saint Paul Internet Access and E-Mail Policy does allow for incidental personal use of the City e-mail system by employees. Thus, the e-mail messages in question that were not created or maintained in the City employee's capacity as a City employee are personal, not governmental data.</p> <p>Mr. Nelson provided the Commissioner with a copy of the <em>City of Saint Paul Internet Access and E-mail Policy, Revised Effective May 1, 2002</em>. In relevant part, it states:</p> <p class="opinion_quote"><strong>Personal Use of E-Mail and Internet Access</strong> <br /> Incidental and occasional personal use of e-mail and Internet access is tolerated subject to the same policies, procedures and legal considerations that apply to business-related e-mail and Internet use. Incidental and occasional personal use must be done on employee time such as during lunch or breaks. Such personal use is permissible so long as the incremental cost is negligible, no city's business activity is preempted by the personal use, and no city policies or laws are violated. Excessive personal use and personal use in violation of this Policy, can be grounds for discipline up to and including termination. Personal use of the city's Internet access and e-mail constitutes the user's consent to the city to monitor, read, and use in any way any message, record, or other information created by the personal use.</p> <p>The Commissioner has the following comments. First, the City's policy clearly allows for some personal use of its email and Internet connection. Second, the City apparently is in possession of personal emails that Mr. Lo created. Third, as the Commissioner consistently has discussed, such data are not subject to the provisions of Chapter 13.</p> <p>It should be noted that if the City is maintaining any of the data in the personal emails to document any past or future disciplinary action it may take against Mr. Lo, it appears those data become government data and are subject to Chapter 13. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267650" title="02-049" target="_blank">Advisory Opinion 02-049</a>.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Nelson raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">1. The City of Saint Paul did not comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations]. <p>2. Assuming the data in the emails withheld by the City were not created by Mr. Lo in his capacity as a government employee, are not related to the operation of government, and are not being maintained to document past or future disciplinary action, the data are not subject to the requirements of Chapter 13.</p> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 11, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674172667762667772671472022-01-19T19:23:17Z266258266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267579" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-05-03T15:14:43ZDid the Rock County Auditor/Treasurer's Office comply with Minnesota Statutes, Chapter 13, in charging $14.25 for seventeen pages of data relating to per diem claims by Rock County Board members?May 3, 2005; Rock County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On April 4, 2005, IPAD received a letter, dated same, from Greg LaFond, on behalf of the City of Luverne. In his letter, Mr. LaFond asked the Commissioner to issue an advisory opinion regarding the appropriateness of the Rock County Auditor/Treasurer Office's fee for copies of public data.</p> <p>IPAD, on behalf of the Commissioner, wrote to Gloria Rolfs, the Auditor/Treasurer, in response to Mr. LaFond's request. The purposes of this letter, dated April 5, 2005, were to inform her of Mr. LaFond's request and to ask her to provide information or support for the Office's position. On April 22, 2005, IPAD received a response, dated same, from Jeffrey Haubrich, Assistant Rock County Attorney.</p> <p>A summary of the facts as provided by Mr. LaFond is as follows. In his opinion request, Mr. LaFond wrote:</p> <p class="opinion_quote">... in January of 2005, my office requested copies of the per diem reports of Rock County Commissioners for the year 2004. The request was made of the Rock County Auditor-Treasurer.</p> <p class="opinion_quote">The Rock County Auditor-Treasurer provided 17 pages of per diem reports in mid-January of 2005. The copies were accompanied by a billing that included a charge of $.25 per page for the copies and a $10.00 service charge.</p> <p class="opinion_quote">On January 31, 2005, I wrote to the Rock County Auditor-Treasurer and questioned the $10.00 service fee. To date, I have not received a response.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. LaFond's request for an advisory opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Rock County Auditor/Treasurer's Office comply with Minnesota Statutes, Chapter 13, in charging $14.25 for seventeen pages of data relating to per diem claims by Rock County Board members?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).)</p> <p>In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data.</p> <p>Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>In his comments to the Commissioner, Mr. Haubrich wrote:</p> <p class="opinion_quote">You will note that accompanying this letter is a photocopy of a Rock County Combination Warrant Check for $1.93, the refund for what Mr. LaFond believes to have been an overcharge for the data requested. The County has in the past used $10.00 minimum charge to administer large data requests such as the extensive request the City and Mr. LaFond sought which was a copy of all the per diem records for each county commissioner. In this particular instance, it appears the $10.00 charge was actually a slight overcharge and that is why the County is refunding the $1.93. In practice, the County only charges this charge when it is a large request and the fee and time required are substantial. In this particular case, as I indicated, it did, upon further review, appear that the County had slightly overcharged by using the minimum, while in many other cases, it is assured that the County has undercharged.</p> <p class="opinion_quote">To rectify this situation, the County will now calculate precise charges for all of the requests and bill them regardless of how small the amount of time required is...</p> <p class="opinion_quote">I am sure if the County took the time to trace back through its records and if they were able to calculate the actual expenses on the handful of times the $10.00 minimum was applied, that it would be equally often that the County shorted itself and provided a discount rate to the requester of the data. However, in a technical sense the County realizes that this practice isn't probably in absolute strict compliance with the technical requirements of the act and, therefore, it will abandon the fixed minimum charge in favor of calculating a precise charge in each data request.</p> <p>Attached to Mr. Haubrich's comments was a copy of an April 22, 2005, letter he wrote to Mr. LaFond. In the letter, Mr. Haubrich wrote:</p> <p class="opinion_quote">The County Auditor/Treasurer's Department staff spent approximately one-half hour time preparing and researching your request. The lowest hourly rate in the department is $12.38 cash, and when figuring a 1.4 multiplier for labor additives, the total hourly cost becomes $17.33, one-half of which is $8.67 for the time spent. This is in addition to the $4.25 for the copies at 25 cents per page, equated to a total bill of $12.32 as opposed to the $14.25 you were charged, therefore the $1.93 refund.</p> <p>As discussed above, section 13.03, subdivision 3(c), provides that government entities, in responding to requests for copies of data, may charge only the actual costs of searching for and retrieving, and for making the copies. In his April 22, 2005, letter to Mr. LaFond, Mr. Haubrich states that the Auditor/Treasurer's Office spent 30 minutes preparing and researching the request. The Commissioner does not know if preparing and researching is the same as searching for and retrieving. If not, it is possible the $8.67 (half of $17.33) charge includes labor costs that are not allowable, such as separating public from not public data.</p> <p>Mr. Haubrich also did not provide documentation explaining how the 25 cents per page fee represents the actual cost of making the copies, i.e., toner, paper, or labor fee.</p> <p>In addition, it should be noted that the Commissioner's calculation of the Office's revised charge does not match with that of Mr. Haubrich. The Office made seventeen copies at 25 cents per page. In adding that portion of the fee, $4.25, to the prepare and research charge, $8.67, the total is $12.92, not $12.32.</p> <p>Finally, in previous opinions, the Commissioner has stated that Chapter 13 does not allow government entities to assess minimum charges, such as that set here by the Office. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267623" title="99-042" target="_blank">99-042</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267987" title="01-018" target="_blank">01-018</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267988" title="01-019" target="_blank">01-019</a>, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/267040" title="01-020" target="_blank">01-020</a>.)</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. LaFond raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Commissioner cannot determine whether the Rock County Auditor/Treasurer complied with Minnesota Statutes, Chapter 13, in charging $14.25 for seventeen pages of data relating to per diem claims by Rock County Board members.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: May 3, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675792662732669192022-01-19T19:23:17Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267662" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-04-20T15:14:43ZDid Independent School District 728, Elk River comply with Minnesota Statutes, Chapter 13, in its response to follow-up requests for data, dated December 23 and 29, 2004?April 20, 2005; School District 728 (Elk River)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On March 22, 2005, IPAD received a letter from Harold Shogren, on behalf of the Elk River Education Association (EREA). In his letter, Mr. Shogren asked the Commissioner to issue an advisory opinion regarding the EREA's right to gain access to certain data maintained by Independent School District 728, Elk River. Mr. Shogren's request required clarification with IPAD staff, which he provided on April 1, 2005. </p><p> IPAD, on behalf of the Commissioner, wrote to Alan Jensen, District Superintendent, in response to Mr. Shogren's request. The purposes of this letter, dated April 4, 2005, were to inform him of Mr. Shogren's request and to ask him to provide information or support for the District's position. On April 12, 2005, IPAD received a response from Ivars Krafts, an attorney representing the District. </p><p> At the outset, the Commissioner notes that Mr. Shogren and William Hjerstedt, President of the EREA, asked for access to the data at issue here, and subsequently communicated with the District, jointly, on behalf of the EREA. A summary of the facts follows. </p><p> In a letter to the District dated September 21, 2004, Mr. Hjerstedt requested copies of all the Superintendent's 'Friday Briefings' to the school board. </p><p> In a letter dated December 23, 2004, Mr. Shogren wrote to Mr. Jensen: [t]his is a follow up to an EREA letter to you dated September 21, 2004. That letter requested the EREA be provided the complete file of the superintendent's Friday letters to the School Board. This letter reiterates that request . . . </p><p> In his letter, Mr. Shogren modified the time frame applicable to the EREA's original data request to reflect that, in response, the District had provided copies of the Friday Briefings for the time period of November 15, 2002, to November 14, 2003. (In a letter dated December 29, 2004, Mr. Hjerstedt corrected certain dates in Mr. Shogren's December 23 letter.) They both stated that they were still requesting copies of the Friday Briefings that the District had not yet provided. </p><p> Mr. Jensen responded to Mr. Shogren, in a letter also dated December 23, 2004. Mr. Jensen wrote: </p><p class="opinion_quote"> When I gave [Mr. Hjerstedt] copies of the year of Friday Notes I asked if that would suffice as I see no positive value in your request. . . . [He] was asked to let me know if you still wanted more copies and the matter was left at that. Therefore I do not feel constrained by you [sic] comment suggesting that the time has past and that I am remiss in causing this to happen. . . . I will, however, comply with your recent request as soon as possible. Please check your records as I have already given you the second half of your request. . . . I will provide copies of the others you have requested. You will receive letters from the period January 2001 through October 8, 2002. </p><p> In his opinion request, Mr. Shogren wrote to the Commissioner that the Friday Briefings are notes written by the Superintendent and sent to each member of the school board. They were written in the period from sometime in 2000 or 2001 and extended into sometime in 2004. Mr. Shogren wrote: </p><p class="opinion_quote"> After [his December 23, 2004, request, Mr. Jensen] stated that he would only give the EREA the Briefings for the period from January 2001 through October 2002. In [Mr. Jensen's December 23, 2004 letter,] he also stated that the delay was a result of his request of [Mr. Hjerstedt] to forgo the Briefings not yet received. [Mr. Hjerstedt] did not respond to this verbal request because he thought that in the context of the conversation his failure to respond to the request would be understood as a denial of the request and that the EREA was pursuing its request. </p><p> In his comments to the Commissioner, Mr. Krafts wrote: </p><p class="opinion_quote"> As is apparent from the written communication between representatives of the Elk River Education Association and the Superintendent, Dr. Jensen, there was also oral discussion between the Superintendent, and the President of the EREA, William Hjerstedt. Delay resulted from confusion about the time periods for which the notes were requested. . . . </p><p class="opinion_quote"> The request by the EREA is a valid one in that portions of the notes do contain public data. The District has very few people qualified to analyze the notes and redact the private data. The District has done its best to comply with the request; yet, the very time-consuming but necessary process of redaction has resulted in a slower than usual response. </p><p> Mr. Krafts stated that the District is in the process of redacting the data and will provide copies to the EREA. </p><hr /><br /><h2> Issue: </h2><p> Based on Mr. Shogren's request for an opinion, the Commissioner agreed to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did Independent School District 728, Elk River comply with Minnesota Statutes, Chapter 13, in its response to follow-up requests for data, dated December 23 and 29, 2004?</td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) </p><p> The Commissioner notes the confusion, due to verbal communications that neither party clarified, that contributed to the time the District has taken to respond to the EREA's request. However, some seven months after the original request, and four months after the follow-up requests, the District has not yet provided the EREA with copies of all of the requested data, a response that is neither prompt nor within a reasonable time. </p><p> In addition, it should be noted that in his letter to Mr. Shogren dated December 23, 2005, Mr. Jensen stated: [a]s you are aware these notes must be reviewed by counsel to ensure that we are releasing public information only as they were not originally written for public distribution. You are also aware that there will be a cost involved in this process that, I am sure, you are not asking the district, during these times, to cover. In his comments to the Commissioner, Mr. Krafts wrote that the Superintendent no longer commingles private and public data in the Friday notes, but now sends private data by separate communication clearly identified as private. The Commissioner commends that change, and reminds her readers that government entities are obliged to maintain data such that the data are easily accessible for convenient use, and entities may not charge a fee for separating public from not public data. (See section 13.03, subdivisions 1 and 3(c). </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Shogren raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Independent School District 728, Elk River, did not comply with Minnesota Statutes, Chapter 13, in its response to follow-up requests for data, dated December 23 and 29, 2004, because its response was neither prompt nor within a reasonable time. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: April 20, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2676622663442662782022-01-19T19:23:16Z266258266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266495" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-04-18T15:14:43ZAre the committees of the Cannon Falls Community Hospital Board in compliance with Minnesota Statutes, Chapter 13D, when they meet in closed session?April 18, 2005; Cannon Falls Community Hospital Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On March 10, 2005, IPAD received a letter, dated March 3, 2005, from Shirley Workman. In her letter, Ms. Workman asked the Commissioner to issue an advisory opinion regarding public access to meetings of committees of the Cannon Falls Community Hospital Board (the Board). Ms. Workman submitted the $200.00 fee required by section 13.072.</p> <p>On March 14, 2005, IPAD wrote to Glenn Christian, interim chief executive officer of the Cannon Falls Hospital. In its letter, IPAD informed Mr. Christian of Ms. Workman's request and gave the Board, or any of its members, an opportunity to explain the Board's position. The Board presented its position in a letter dated March 23, 2005, from its attorney, John E. Diehl.</p> <p>A summary of the facts presented by Ms. Workman is as follows.</p> <p>The Board has five members and has a number of standing committees. Two members of the Board sit on these standing committees. The committees meet regularly to discuss and consider matters pending before the Board. In most cases the meetings are closed to the public. Ms. Workman stated that when a committee has considered an issue, there is little discussion of that issue by the Board.</p> <p>Ms. Workman provided a copy of a February 22, 2005, letter from Mr. Diehl to Mr. Christian discussing whether the committee meetings were subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML), and so needed to be open to the public. The conclusion of the February 22, 2005, letter was that the committee meetings were not subject to the OML.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Ms. Workman's request for an opinion, the Commissioner will address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Are the committees of the Cannon Falls Community Hospital Board in compliance with Minnesota Statutes, Chapter 13D, when they meet in closed session?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>The parties agree that the Board is subject to the OML. The question before the Commissioner is whether committees of the Board are subject to the OML.</p> <p>Section 13D.01, subdivision 1 states in pertinent part:</p> <p class="opinion_quote">All meetings, including executive sessions, must be open to the public ... when required or permitted by law to transact public business in a meeting...</p> <p class="opinion_quote">(c) of any</p> <p class="opinion_quote">(1) committee,</p> <p class="opinion_quote">(2) subcommittee,</p> <p class="opinion_quote">(3) board,</p> <p class="opinion_quote">(4) department, or</p> <p class="opinion_quote">(5) commission,</p> <p class="opinion_quote">of a public body...</p> <p>The express language of the statute requires open meetings for any type of committee transacting public business.</p> <p>The committees at issue are described as standing committees. According to the Board, the Hospital District bylaws require that standing committees be established by Board resolution. No resolutions were provided to the Commissioner so there is no way to determine if the standing committees have been created as required by the bylaws nor is there a way to determine what authority has been granted to the standing committees by the Board.</p> <p>The Board indicated that the standing committees are responsible for management liaison, collection of information, and formulation of issues and recommendations for the Board. The Board takes the position that these activities do not give the standing committees sufficient authority to require that the committees comply with the OML. In support of its position, the Board references two decisions by the Minnesota Court of Appeals. Each of the cases will be discussed and analyzed in turn.</p> <p>The first case, <em>Minnesota Daily v. University of Minnesota</em>, 432 N.W.2d 189 (Minn. Ct. App. 1988), involved the Presidential Search Advisory Committee (PSAC) that was created in 1988 to provide advice and consultation to the regents of the University on the selection of the next president. PSAC was made up of faculty, student and staff members and its duties included the screening of applicants and creating a short list of finalists. PSAC's decisions were subject to review by the regents. At open meetings, PSAC established general procedures and adopted an evaluation system for candidates. Once specific candidates were to be discussed, PSAC meetings were closed. The <em>Minnesota Daily</em> sued alleging violations of the OML.</p> <p>The district court found that the OML did not apply to PSAC as it was not a committee of the regents. The Court of Appeals agreed finding that PSAC did not have the power to decide who the new university president would be and so was not transacting the public's business. As a result, PSAC did not have to comply with the OML.</p> <p>The <em>Minnesota Daily</em> case is not dispositive here, as the Board's standing committees are not performing a one-time function as was PSAC. Instead, the standing committees are performing tasks that relate to the ongoing operation of the Cannon Falls Hospital District. Examples of these tasks include directing the appraisal of the chief executive officer, developing meeting agendas for the Board, doing an annual review of governance effectiveness, defining quality as it relates to the operational functioning of the hospital district, assessing the adequacy of the quality improvement plan, preventing or detecting and reporting violations of applicable laws and regulations, developing financial performance indicators and analyzing and presenting major capital plans.</p> <p>In order to complete these tasks, the standing committees of the Board will need to receive information and analyze it in order to make recommendations to the Board. The very nature of this process requires that the standing committees make decisions about what should or should not be communicated to the Board. Ms. Workman indicated that when a committee has considered an issue, there is very little discussion by the Board about that issue. This appears to indicate that the Board has delegated to the committees the responsibility to make recommendations on which the Board will act without much deliberation. This is the type of conduct that the Minnesota Supreme Court warned governing bodies to avoid when using committees. See <em>Moberg v. Independent School District No. 281</em>, 336 N.W.2d 510, 517 (Minn. 1983). Given the nature of the work assigned to the standing committees and the level of responsibility placed in them by the Board, the committees are transacting public business and so must comply with the OML.</p> <p><em>Sovereign v. Dunn</em>, 498 N.W.2d 62 (Minn. Ct. App. 1993) is the second case referred to by the Board as supporting its conclusion that the OML does not apply to its standing committees. Kenneth Sovereign alleged that the City of Lake Elmo had violated the OML when the mayor and a member of the city council attended a series of mediation sessions that were not open to the public. The purpose of the mediation sessions was to resolve an annexation dispute between Lake Elmo and the City of Oakdale.</p> <p>In upholding the district court's dismissal of the action, the Court of Appeals found that because less than a quorum of the Lake Elmo City Council was involved in the meetings and because the two-member delegation from Lake Elmo did not have the power to bind the City, the OML did not apply. <em>Sovereign</em> at 67. Again, the findings in <em>Sovereign</em> are not directly applicable to the Board in this case.</p> <p>Much as in the <em>Minnesota Daily</em> case cited above, the <em>Sovereign</em> case involves a committee acting on an <em>ad hoc</em> basis--not as a standing committee such as those under consideration here. The finding in Sovereign with respect to the quorum issue is not applicable here - a quorum of the standing committee is needed to transact the business of the committee.</p> <p>This case is more like that of <em>St. Cloud Newspapers, Inc. v. District 742 Community Schools</em>, 332 N.W.2d 1 (Minn. 1983). There, the Court found that a meeting of the school board for the St. Cloud area school district to discuss long-range planning was a meeting for which notice had to be given, in compliance with the OML. While the <em>St. Cloud</em> case is different from this one in that all members of the St. Cloud school board participated in the meeting, it is similar to this case in that the standing committees of the Board receive information that may influence later decisions of both the committee and the Board. The Court in <em>St. Cloud</em> held that when this type of information is to be received, the OML applies. <em>St. Cloud</em> at 6.</p> <p>In the case before the Commissioner, the standing committees are transacting the business of the Hospital District and its Board. By the express terms of the OML, the standing committees must comply its requirements. The OML was enacted for the public benefit and is liberally construed in favor of openness. <em>St. Cloud</em> at 4-5; <em>Sovereign</em> at 66; <em>Minnesota Daily</em> at 191. Therefore, the meetings of the standing committees must be open to the public unless there is an express statutory provision that authorizes or requires that the meeting, or a portion of a meeting, be closed.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Workman raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The committees of the Cannon Falls Community Hospital Board are not in compliance with Minnesota Statutes, Chapter 13D, when they meet in closed session.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: April 18, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2664952664942022-01-19T19:23:16Z266258266309266284266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267867" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-03-28T16:14:43ZPursuant to Chapter 13D, may the Wild Rice Watershed District close an open meeting to discuss its contract with an independent contractor?March 28, 2005; Wild Rice Watershed District Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On February 17, 2005, the IPAD received a letter from Elroy Hanson, an attorney for the Wild Rice Watershed District Board (Board). In the letter that was dated February 14, 2005, Mr. Hanson requested that the Commissioner issue an advisory opinion on a matter relating to the Open Meeting Law, Minnesota Statutes, Chapter 13D. The Commissioner requested additional information from Mr. Hanson and the final items were received on March 8, 2005. Mr. Hanson submitted the $200.00 fee required by section 13.072.</p> <p>The issue to be addressed in this opinion may have an effect on the parties hired by the Board to provide services. Therefore, the Commissioner determined that the service providers should be notified of the request for an advisory opinion. A letter dated March 9, 2005, provided notice to each service provider offering them an opportunity to comment on the issue outlined below. No responses were received.</p> <p>The facts as presented by Mr. Hanson are as follows. The Board is subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). The Board has no employees; services are provided by contract. At its February 2005 regular meeting, one member of the Board's members moved to close the meeting for purposes of discussing the Board's contract with the Board's engineering firm. As attorney for the Board, Mr. Hanson advised the members of the Board that the meeting could not be closed unless there was statutory authority to do so. The Board did not close the meeting in February and determined that it would ask for an advisory opinion on the issue stated below. The Board has taken the position that the language does not apply to its service providers.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Hansen's request, the Commissioner will address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Chapter 13D, may the Wild Rice Watershed District close an open meeting to discuss its contract with an independent contractor?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>The Board acknowledges that it is subject to the OML. See Minnesota Statutes, section 13D.01, subdivision 1 (b)(6). The Board purchases administrative, secretarial, accounting, engineering, legal and public relations services from what the Board characterizes as independent contractors. The Board wants to review its contract with one of the parties with whom it has a contract for services. The question before the Commissioner is whether the Board can close a portion of a meeting to conduct that review.</p> <p>The OML requires that meetings of public bodies such as the Board be open to the public, unless the closure is authorized by statute. See section 13D.01, subdivision 1. There are several statutory provisions that require or permit a public body such as the Board to close a portion of a meeting. For purposes of this opinion, the Commissioner assumes that a discussion of contract terms includes an evaluation of the performance of those terms. Therefore, the provision at issue here is found in section 13D.05, subdivision 3 (a). It states:</p> <p class="opinion_quote">A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.</p> <p>Whether this provision applies to a service provider requires the interpretation of the word individual. There is no definition of the term in Chapter 13D or Chapter 645 of Minnesota Statutes (provides general rules for interpreting statutes and rules). The Commissioner turns then to the common usage of the word individual. See section 645.08 (1).</p> <p>As defined in <em>The American Heritage College Dictionary</em>, Third Edition, Houghton Mifflin Company, Boston 1997, individual means of or relating to an individual, especially a single human being. Utilizing this definition, the Board may close a meeting to evaluate the performance of a human being who is subject to its authority.</p> <p>The next step in the analysis is whether the service providers are human beings. The first determination is whether the contract is with a human being or a business organization that is a legal entity separate and distinct from the human beings who own it. Examples of a separate legal entity are corporations and limited liability companies. Partnerships and sole proprietorships are examples where the human being who owns the business is personally liable for the business.</p> <p>At the Commissioner's request, the Board has provided copies of documents that relate to each of the five services that are purchased by contract. Applying the steps outlined above leads to the following conclusions. When, as with the contract between the Board and Mr. Hanson, it is an employment agreement between the Board and Mr. Hanson as an individual and uses the words employ throughout, Mr. Hanson is an individual whose performance may be evaluated in a closed session of the Board. See section 13D.05, subdivision 3(a).</p> <p>In contrast, the amended contract between the Board and JB Associates Limited, Inc. for administrative services specifically uses the phrase independent contractor and is between the Board and a corporation. An evaluation of the performance of JB Associates Limited, Inc. is not an evaluation of an individual and so there is no authority to close the meeting.</p> <p>The Board did not provide a copy of the contract between it and the engineering firm, Houston Engineering, Inc. Assuming that Houston Engineering, Inc. is a business organization like a corporation as the term Inc. in its name would certainly imply, then an evaluation of the terms of its contract would not be an evaluation of an individual and so there is no authority to close the meeting.</p> <p>In summary, the identity or status of each provider, the relationship between each provider and the Board, along with the terms of the contractual agreement will need to be evaluated to determine how the language in section 13D.05, subdivision 3(a) applies in a particular situation.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that the Wild Rice Watershed District Board raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Pursuant to Chapter 13D, the Wild Rice Watershed District Board may close an open meeting to discuss its contract with an independent contractor when that contractor is an individual human being. If the contractor is a business organization like a corporation, then the meeting may not be closed.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 28, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678672663572666292663122022-04-22T17:45:17Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267473" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-03-21T16:14:43ZWas Faribault County in compliance with Minnesota Statutes, Chapter 13, when it disseminated to the public a copy of a document containing data about an employee?March 21, 2005; Faribault County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On January 25, 2005, IPAD received a letter dated same, from X, an employee of Faribault County. In X's letter, s/he asked the Commissioner to issue an advisory opinion regarding X's right to gain access to certain data that the County maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Brenda Ripley, Director of County Personnel and Data Processing, in response to X's request. The purposes of this letter, dated February 1, 2005, were to inform her of X's request and to ask her to provide information or support for the County's position. On February 18, 2005, IPAD received a response, dated same, from Susan Hansen, an attorney representing the County.</p> <p>A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:</p> <p class="opinion_quote">On [date removed] I gave my supervisor... a letter response to a written reprimand. Later that day I received a call from a local newspaper asking me what they were supposed to do with my letter. Without my knowledge or consent, a County employee had faxed my letter to the newspaper. I asked the paper not [sic] publish the letter and to fax the letter to me, which they did immediately... .I did not know who Sue Hansen (the post-it on the fax) was or why the County would send my letter to her or to the newspapers...</p> <p class="opinion_quote">The next business day [date removed] I provided a written demand letter to the County, asking that any copies of the [letter response to the written reprimand] provided to newspapers or others be immediately retrieved.On [date removed] I received an email from the County Personnel Director responding to my letter. According to the County, my letter was faxed to the newspaper by mistake.</p> <p>Also in X's letter, s/he stated, I wish to clarify that there has been no final disposition of this matter.</p> <p>X attached to the opinion request a copy of his/her response to the reprimand, a copy of his/her letter to the County regarding the newspaper's receipt of the response to the reprimand, a copy of the newspaper employee's email explanation of what happened, and a copy of the County Personnel Director's email apology.</p> <hr /> <h2>Issue:</h2> <p>Based on X's request for an opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Was Faribault County in compliance with Minnesota Statutes, Chapter 13, when it disseminated to the public a copy of a document containing data about an employee?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Government data about current and former employees are classified at Minnesota Statutes, 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.</p> <p>In a situation where someone has complained about an employee, the existence and status of the complaint or charge are public. (See 13.43, subdivision 2(a)(4).) If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public: the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. (See section 13.43, subdivision 2(a)(5).) A final disposition occurs when:</p> <p class="opinion_quote">...[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....</p> <p>(See section 13.43, subdivision 2(b).)</p> <p>In her comments to the Commissioner, Ms. Hansen wrote:</p> <p class="opinion_quote">On [date removed] X was issued a written reprimand. [Fifteen calendar days later], X submitted a letter to [his/her] supervisor in response to the written reprimand (hereafter X's letter ). The supervisor provided a copy of X's letter to the County's personnel Director. The Personnel Director then attempted to transmit X's letter to [Ms. Hansen]. [Ms. Hansen's office] serves as Faribault County's labor and employment law attorneys. When the Personnel Director placed X's letter on the facsimile machine for transmission to [Ms. Hansen] the Personnel Director inadvertently touched the wrong speed dial number on the facsimile machine. Specifically, instead of touching the speed dial number for the office of [Ms. Hansen], the Personnel Director touched the speed dial number for the Wells Mirror and Shopper newspaper.</p> <p>Ms. Hansen explained that only one employee at the newspaper saw the letter. The employee, after calling the number listed at the top of the facsimile, faxed the letter back to the County and destroyed the copy in the newspaper's possession. The employee then submitted an email to the County's Personnel Director describing the events.</p> <p>Ms. Hansen also stated that the actions of the Personnel Director were not deliberate or willful. She wrote:</p> <p class="opinion_quote">Instead, the Personnel Director's actions were inadvertent, accidental and in error. The Personnel Director apologized to X for this error... In order to prevent such an error from occurring by chance again, the County has deleted its labor attorney's facsimile number from the speed dial function on its facsimile machine.</p> <p>Ms. Hansen also commented on the issue of whether or not there had been a final disposition for purposes of Chapter 13. She wrote:</p> <p class="opinion_quote">The original [date removed] written reprimand that was issued to X was not grieved pursuant to the grievance procedure of the collective bargaining agreement between Faribault County and [the exclusive representative of X]. Therefore, based upon the failure of X to elect arbitration within the time provided by the collective bargaining agreement, a final disposition regarding this disciplinary action has occurred... The final disposition of this disciplinary action, together with the specific reasons for the action and data documenting the basis of the action, are therefore public data...</p> <p>The Commissioner has the following comments. There is a disagreement between the parties as to whether or not a final disposition has occurred and the Commissioner does not have enough information to determine which is the case. However, it appears the classification of the data in X's response letter can be determined, irrespective of this question. If a final disposition <em>has not</em> occurred, the data are private pursuant to section 13.43, subdivision 4. If a final disposition <em>has</em> occurred it appears the data also are private. Pursuant to section 13.43, subdivision 2(a)(5), when a final disposition has occurred, the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action... are public. Here, it does not appear that data in X's response letter constitute specific reasons for the County's disciplinary action and/or data documenting the basis of the disciplinary action.</p> <p>Thus, assuming the data in the response letter are private, the County was not in compliance with Chapter 13 when it faxed a copy of the letter to the <em>Wells Mirror and Shopper</em>. The Commissioner notes, however, that while the County's dissemination technically is a violation of Chapter 13, the County has admitted it made a mistake, has apologized to X, and has taken a positive step toward ensuring that such a mistake will not happen again.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that X raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">It does not appear Faribault County was in compliance with Minnesota Statutes, Chapter 13, when it disseminated to the public a copy of a document containing data about an employee.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 21, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2674732668252664052022-01-19T19:23:15Z266258266315266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267563" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-03-14T16:14:43ZDid Resource Training and Solutions comply with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the following data: all financial documents pertaining to the health insurance pool and the annual audit of Resource Training and Solutions?March 14, 2005; Resource Training and Solutions36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On January 21, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS), a Minnesota service cooperative, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director of RTS, in response to Mr. Leyk's request. The purposes of this letter, dated January 25, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On February 4, 2005, IPAD received a response, dated same, from Thomas Pursell, an attorney representing RTS.</p> <p>A summary of the facts as provided by Mr. Leyk is as follows. In a letter dated September 29, 2004, Mr. Leyk wrote to Mr. Cavanna:</p> <p class="opinion_quote">I am requesting a copy of all financial documents pertaining to the health insurance pool at [RTS]. Please include ledgers containing all income and expenditures, listing the names, amounts, and services provided by each vendor or entity.</p> <p>In a letter dated October 8, 2004, Mr. Leyk wrote again to Mr. Cavanna.</p> <p class="opinion_quote">Let me clarify what I would like to receive. I am NOT interested in the individual claims data of each school district. I am only interested in receiving the financial records pertaining to the health insurance pool. The financial records I am requesting should show all inflows and expenditures pertaining to the health pool, as well as all stabilization accounts. The focus of my inspection will be identifying how much and whom is receiving monies from the premiums charged to the school districts. I would also like the worksheet or a statement from Blue Cross/Blue Shield that will match and verify the amounts paid during the same period as the dates on the financial records. (Emphasis provided.)</p> <p>In a letter dated October 26, 2004, Mark Kinney, an attorney representing RTS wrote to Mr. Leyk. He cited Minnesota Statutes, section 13.203, which classifies certain service cooperative data as nonpublic. Mr. Kinney wrote:</p> <p class="opinion_quote">We have carefully considered your request, and have determined that you are requesting either claims experience or related information...</p> <p class="opinion_quote">The statute provides that the Executive Director of a Minnesota Service Cooperative may release nonpublic data not on individuals if he or she determines that release of the data will not be detrimental to the plan or program. It is our understanding that you are a licensed insurance broker, and that you are not requesting this information on behalf of an employer that is a member of the pool. Accordingly, I have advised [RTS] that the release of the data requested will likely be detrimental to the pool.</p> <p class="opinion_quote">... Also note that [RTS] has offered and will make available to you at no cost its audited financial statements, which may contain summary information on the health pools, as those statements are already in the public domain.</p> <p>In an October 28, 2004, letter to Mr. Cavanna, Mr. Leyk noted that he received the denial letter from Mr. Kinney. Mr. Leyk further wrote:</p> <p class="opinion_quote">I would like a copy of the audit performed on the health pool and again, I am requesting a copy of the health pool financials.</p> <p class="opinion_quote">Also, let me clarify what I would like to receive. Minnesota Statute 13.203 only applies to the information received from carriers and administrators. I am not interested in the claims information for which this statute applies. I would like to inspect the financials of [RTS] that pertain to the health pool, NOT claims information. The transactions that occur within [RTS] are not protected information and are subject to public inspection under [Chapter 13].</p> <p>In a letter dated November 3, 2004, Mr. Kinney wrote to Mr. Leyk:</p> <p class="opinion_quote">Contrary to your assertion, claims experience is not limited to information received from carriers and claims administrators. [Section 13.203] protects claims experience and all related information received from carriers and claims administrators. Applying its ordinary commercial meaning, claims experience includes individual claims (which would be protected without regard to Section 13.203), and claims that are aggregated at both the employer and pool level. Claims experience is the central component of the health pool audit, and is inextricably intertwined with health pool financials. [Emphasis provided.]</p> <p>In response to your request, [RTS] has retained an actuary to assist it in determining whether public data contained in the health pool audit, if any, may be separated from claims experience and all related information received from carriers and claims administrators. We will contact you when that determination is complete, and make any resulting public data available for inspection.</p> <p>Mr. Leyk and Mr. Kinney exchanged additional emails.</p> <p>In his opinion request, Mr. Leyk wrote, Although I have requested several documents, my primary interest is in the financials and the annual audit. These are the requests on which I would like an advisory opinion at this time.</p> <p>The Commissioner notes that RTS provides a number of services, including software training, professional development, and parenting workshops, in addition to a group health purchasing coalition.</p> <hr /> <br /> <h2>Issue:</h2> <p>Based on Mr. Leyk's request for an opinion, the Commissioner agreed to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did Resource Training and Solutions comply with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the following data: all financial documents pertaining to the health insurance pool and the annual audit of Resource Training and Solutions?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. Section 13.203 states:</p> <p class="opinion_quote">Claims experience and all related information received from carriers and claims administrators participating in a group health or dental plan, including any long-term disability plan, offered through the Minnesota service cooperatives to Minnesota school districts and other political subdivisions, and survey information collected from employees and employers participating in these plans and programs, except when the executive director of a Minnesota service cooperative determines that release of the data will not be detrimental to the plan or program, are classified as nonpublic data not on individuals.</p> <p>In the case of this opinion, there appears to be no dispute that RTS is a service cooperative pursuant to Minnesota Statutes, section 123A.21, and as such, is subject to the provisions of Chapter 13.</p> <p>In his comments to the Commissioner, Mr. Pursell wrote:</p> <p class="opinion_quote">With respect to the other part of Mr. Leyk's request - all financial documents pertaining to the health insurance pool - this request is impossibly vague in light of the fact that claims experience is nonpublic data under Minn. Stat. section 13.203. The health insurance pool is an important function of [RTS], which is one of the State's service cooperatives. Virtually every bit or byte of information generated by the insurance pooling function [sic] derived from or related to claims experience. In order to be responsive to Mr. Leyk's request, [RTS] has retained an actuarial firm to determine whether financial documents pertaining to the health insurance pool (or portions thereof) are public data. [RTS] will provide information pursuant to an appropriately articulated request. Until then, a substantive response on all financial documents is premature.</p> <p class="opinion_quote">[RTC] has engaged an actuarial firm at considerable expense to separate public from protected information if an appropriate Data Practices request is received.</p> <p>Regarding Mr. Leyk's request for the audit of the health pool, Mr. Purcell referred to Mr. Kinney's October 26, 2004, letter (see <em>Facts and Procedural History</em> above).</p> <p>The Commissioner has the following comments. First, there appears to be a disagreement between the attorneys representing RTS and Mr. Leyk regarding the language in section 13.203. Mr. Kinney, in his November 3, 2004, letter, asserted that the term claims experience discussed in section 13.203 is not limited to information received from carriers and claims administrators. Conversely, Mr. Leyk, in his opinion request, argued that section 13.203 does not protect financial data within the service coop. The classification of 'nonpublic data' only applies, as stated in the statute, to claims experience and related information received FROM THE CARRIERS AND CLAIMS ADMINISTRATORS. (Emphasis provided.)</p> <p>In the Commissioner's opinion, the first phrase in section 13.203 classifies the following data received from carriers and claims administrators: claims experience and all related information. Thus, data that RTS collects, creates, and maintains that are not claims experience and all related information from carriers and claims administrators are not protected pursuant to section 13.203. The Commissioner's interpretation is buttressed by the legislative intent behind section 13.203. Mr. Kinney, in his October 26, 2004, letter wrote:</p> <p class="opinion_quote">The Minnesota State Legislature categorized claims experience and all related information as nonpublic in order to protect the Service Cooperative pools from being forced to reveal data that could be used by competitors to lure away employers with good experience, or to undercut competitive bids that are made on the pool as a whole through the public bidding process.</p> <p>Based on the plain language of section 13.203 and the legislative intent provided by Mr. Kinney, it seems highly likely that the Legislature did not intend for section 13.203 to protect all of the financial data relating to RTS' health insurance pool. For example, it does not appear that competitors could use data such as financial ledgers showing income and expenses associated with the pool to lure away certain employers or undercut competitive bids. Thus, it seems probable that RTS maintains some financial data responsive to Mr. Leyk's request. Mr. Leyk began making requests for data in October of 2004. The Commissioner urges RTS promptly to provide Mr. Leyk with copies of all public financial documents relating to the health insurance pool. If, for some reason, RTS does not understand Mr. Leyk's request, RTS should obtain clarification promptly.</p> <p>Regarding the copy of the health pool audit Mr. Leyk asked for in his October 28, 2004, letter, it is not clear whether RTS has provided any of the data or informed Mr. Leyk that the data are not public (see section 13.03, subdivision 3(f)). Mr. Kinney, in his November 3, 2004, letter, stated that RTS had retained an actuary to review the audit and separate any public from not public data. Mr. Kinney wrote, We will contact you when that determination is complete, and make any resulting public data available for inspection. If RTS has not either provided the data or informed Mr. Leyk that the data are not public, it should do so promptly. The Commissioner notes that government entities may not charge for separating public from not public data.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Leyk raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">It does not appear that Resource Training and Solutions complied with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the following data: all financial documents pertaining to the health insurance pool and the annual audit of Resource Training and Solutions.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: March 14, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675632668262668262022-01-19T19:23:15Z266258266272266420266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267644" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-03-07T16:14:43ZIs the City of Greenwood in compliance with Minnesota Statutes, section 13.02, subdivision 16, and Minnesota Rules, part 1205.0200, subpart 14, (B) regarding the appointment of a responsible authority? Is the City of Greenwood in compliance with Minnesota Statutes, Chapter 13, in its response to a November 14, 2004, request to inspect public data related to the construction of a fence?March 7, 2005; City of Greenwood36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On November 30, 2004, IPAD received a letter from John Musgjerd, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Greenwood. Mr. Musgjerd's request required additional information and clarification with IPAD staff, which he provided on February 8, 2005. </p><p> In response to Mr. Musgjerd's request, IPAD, on behalf of the Commissioner, wrote to the City. The purposes of this letter, dated February 16, 2005, were to inform him of Mr. Musgjerd's request and to ask him to provide information or support for the City's position. On February 23, 2005, IPAD received a response from Mark W. Kelly, attorney for the City. </p><p> A summary of the facts follows. In a letter and fax addressed to Terry Nagel, then Mayor of Greenwood, dated November 14, 2004, Mr. Musgjerd asked to inspect public data related to the construction of a fence. In his opinion request, Mr. Musgjerd stated that he directed his request to the Mayor due to the fact that the responsible authority for the City had passed away and another individual has still not been appointed to fulfill the responsibilities of the office. </p><p> In his February 5, 2005, opinion request, Mr. Musgjerd stated the following: </p><p class="opinion_quote"> The Greenwood City Office was visited and the minutes of every Council Meeting (both Regular and Special) for the months of June through December 2004 were examined. There was no official action taken on the part of the City Council to appoint another responsible authority. In addition, all supporting information in the council packets was reviewed to ascertain whether this matter was addressed; and, no evidence was found. </p><p> According to Mr. Musgjerd, as of the date of his request, the City had not provided him with access to the data. </p><p> In his comments to the Commissioner, Mr. Kelly stated: </p><p class="opinion_quote"> Greenwood Ordinance Code Section 125.00, Subd. 2 establishes that 'the responsible authority for the City of Greenwood shall be the City Clerk . . . . It is true that in the summer of 2004, the City Clerk of the City of Greenwood passed away. Subsequently, on September 7, 2004, the City engaged the services of a new individual to serve as City Clerk. Consequently, the office of the 'Responsible Authority' was filled at all times pertinent hereto. The office was not vacant on November 14, 2005 [sic]. </p><p> Mr. Kelly stated that Mr. Nagel, the former Greenwood Mayor, has no recollection of Mr. Musgjerd's November 14, 2004, request for data, and [c]onsequently, no action was taken. Mr. Kelly continued: </p><p class="opinion_quote"> The City regrets the government data request contained in the letter was not directed to the attention of the 'Responsible Authority' for the City of Greenwood nor [sic] to the City Clerk. City Code places the public on notice that the City Clerk is the 'Responsible Authority' for the handling of Government Data requests. A notice regarding how to make a government data request is posted at the City Clerk window. (See copy enclosed). This system has served the City, and the public, well. In the past, Mr. Musgjerd has directed Government Data practice requests to the attention of the City Clerk and, on information and belief, received the assistance requested. On information and belief, Mr. Musgjerd did not follow his past practice in the request at issue. In fact, his [opinion request dated] February 5, 2005, [stating that the minutes of every regular and special Council Meeting for the months of June through December 2004 were examined at the Greenwood City Office] . . . appears to confirm that Government Data can be accessed at the office of the City Clerk. . . . The City regrets that Mr. Musgjerd did not recognize that the person serving as City Clerk, and not a specific individual, is Greenwood's 'Responsible Authority' under the Government Data Practices Act. </p><p> The notice, posted at the City Clerk's office, states: </p><p class="opinion_quote"> The responsible Authority of the City of Greenwood is Roberta Whipple, City Clerk, City of Greenwood 20225 Cottagewood Road Excelsior MN 55331 appointed by Ordinance 130 (Greenwood Ordinance Code Section 125) and Resolution No. 6-01. The Responsible Authority is responsible for answering inquiries from the public concerning the provision or dissemination of government data. The Responsible Authority is also charged with creating an inventory of data varieties that the City maintains. All data is presumed public unless specifically determined confidential or private by State or Federal Law. </p><p> In summary, Mr. Kelly wrote: </p><p class="opinion_quote"> At the time in question, November 2004, the office of Responsible Authority under the Government Data Practices Act was filled. The City is of the opinion that the first alleged infraction did not occur. Mr. Musgjerd is entitled to inspect public Government Data in the custody of the City of Greenwood, including but not limited to, the ordinances, files, and records, as requested. The Responsible Authority for the City is the City Clerk. (Greenwood Ordinance section125.00). The request in question was not directed to the attention of the City Clerk, the Responsible Authority for the City. The City regrets that Mr. Musgjerd's the [sic] letter is not recalled by former Mayor Nagel. The requested data awaits Mr. Musgjerd's inspection at the office of the City Clerk during regular Greenwood City Clerk office hours. </p><hr /><br /><h2><br /> Issues: </h2><p> In his request for an opinion, Mr. Musgjerd asked the Commissioner to address the following issues: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> Is the City of Greenwood in compliance with Minnesota Statutes, section 13.02, subdivision 16, and Minnesota Rules, part 1205.0200, subpart 14, (B) regarding the appointment of a responsible authority? </li><p /><li> Is the City of Greenwood in compliance with Minnesota Statutes, Chapter 13, in its response to a November 14, 2004, request to inspect public data related to the construction of a fence? </li></ol></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: <br /></h2><h2> Issue 1: </h2><p><em>Is the City of Greenwood in compliance with Minnesota Statutes, section 13.02, subdivision 16, and Minnesota Rules, part 1205.0200, subpart 14, (B) regarding the appointment of a responsible authority?</em></p><p> Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the responsible authority in a city is the individual designated by the governing body of that city who is responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law. Pursuant to Minnesota Rules, part 1205.0200, subpart 14, (B), the city council shall appoint [as responsible authority] an individual who is an employee of the city. </p><p> The public notice posted at the City Clerk's office identifies the Clerk by name, and states that she is the City's responsible authority. However, Mr. Kelly did not provide the Commissioner with a copy of any resolution that indicates that the City Council took official action to appoint her as responsible authority, as it is required to do. Furthermore, Mr. Kelly stated that [t]he City regrets that [according to Greenwood Ordinance section125.00] Mr. Musgjerd did not recognize that the person <i>serving</i> as City Clerk, and not a specific individual, is Greenwood's Responsible Authority' under the Government Data Practices Act. Mr. Kelly stated that the City had met its obligations with respect to appointing a responsible authority under Chapter 13 because Greenwood Ordinance Code Section 125.00, subdivision 2, contains the following statement: the responsible authority for the City of Greenwood shall be the City Clerk. </p><p> The Commissioner respectfully disagrees. The statement in the City's ordinance that the City Clerk is the responsible authority does not comply with the requirement under statute and rule that the City Council must appoint a specific <u>individual</u> as responsible authority. The Commissioner addressed this issue, also involving the City of Greenwood, in Advisory Opinion 00-021. The City may wish to review the advisory form provided at Minnesota Rules, part 1205.2000, subpart 3, for a model resolution to assist it in appointing a responsible authority. </p><h2> Issue 2: </h2><p><em> Is the City of Greenwood in compliance with Minnesota Statutes, Chapter 13, in its response to a November 14, 2004, request to inspect public data related to the construction of a fence?</em></p><p> The responsible authority of a government entity must establish procedures to ensure that the entity complies with requests for government data from an individual who is not the subject of the data in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) </p><p> Mr. Musgjerd stated that he directed his data request to the then Mayor of Greenwood. According to Mr. Kelly, the former Mayor has no recollection of the request. It is not clear what happened to Mr. Musgjerd's request; therefore the Commissioner cannot determine whether the City was in compliance with Chapter 13 with respect to that request. However, the Commissioner does have the following comments. </p><p> According to Mr. Kelly, the City hired the current City Clerk on September 7, 2004, two months prior to the date of Mr. Musgjerd's request to the Mayor. Mr. Kelly also stated that it was his belief that in the past, Mr. Musgjerd directed data requests to the City Clerk. As noted above, the City is in technical violation of Chapter 13 because it has not appointed an individual as its responsible authority. However, the City employs an individual as City Clerk, who is named in the public notice posted at her City office, and is identified as the City's responsible authority. She was serving in that capacity at the time Mr. Musgjerd directed his request to the Mayor. </p><p> If Mr. Musgjerd did not know whether the City had a responsible authority, it seems reasonable to expect him either to direct his request to the City Clerk, to whom, according to Mr. Kelly, Mr. Musgjerd had directed previous requests, or to contact the City about where to direct his data request. Apparently he did neither. Both parties need to make reasonable efforts to satisfy their respective responsibilities and rights under the statute. If the City has not done so, it needs to provide Mr. Musgjerd the opportunity to inspect the data he requested. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues raised by Mr. Musgjerd is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> The City of Greenwood is not in compliance with Minnesota Statutes, section 13.02, subdivision 16, and Minnesota Rules, part 1205.0200, subpart 14, (B), because it has not appointed an individual as responsible authority. </li><p /><li> The Commissioner cannot determine whether the City complied with a November 14, 2004, request to inspect public data related to the construction of a fence. </li></ol></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: March 7, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2676442665232666272022-01-19T19:23:15Z266258266394266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267516" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-02-09T16:14:43ZDid the City of St. Mary's Point comply with Minnesota Statutes, Chapter 13, in denying access to a copy of a memo issued by the City Attorney regarding ineligible candidates for the November 2004 election?February 9, 2005; City of St. Mary's Point36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On December 21, 2004, IPAD received a letter dated December 20, 2004, from Rosemary Feehan. In her letter, Ms. Feehan asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data that the City of St. Mary's Point maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Holly Whalen, City Clerk, in response to Ms. Feehan's request. The purposes of this letter, dated December 23, 2004, were to inform her of Ms. Feehan's request and to ask her to provide information or support for the City's position. On January 18, 2005, IPAD received a response, dated January 17, 2005, from Mark Vierling, an attorney representing the City.</p> <p>A summary of the facts as Ms. Feehan provided them is as follows. In a letter dated November 22, 2004, Ms. Whalen wrote to Ms. Feehan:</p> <p class="opinion_quote">At the November 9, 2004 City Council meeting you requested a copy of the memo issued by the City Attorney regarding ineligible candidates for the Election. That item was an internal memo issued and retained within his office and is considered privileged and confidential information. The $320 on the City Attorney's bill was for research on the issue and the memo produced.</p> <p>In a letter dated November 29, 2004, Ms. Feehan wrote to Ms. Whalen and asked her to cite the specific statutory provision upon which the City was denying access to the data.</p> <p>In a letter dated December 2, 2004, Ms. Whalen wrote to Ms. Feehan, The specific statute is 595.02 subd. 1(b) and is based on the attorney client privilege and attorney work product doctrine.</p> <p>In a letter dated December 7, 2004, Ms. Feehan wrote to Ms. Whalen and argued that the City's denial was inappropriate.</p> <p>In a letter dated December 14, 2004, Ms. Whalen wrote to Ms. Feehan, Your request for reconsideration is denied. The City's position remains as previously provided to you.</p> <hr /> <br /> <h2>Issue:</h2> <p>In her request for an opinion, Ms. Feehan asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the City of St. Mary's Point comply with Minnesota Statutes, Chapter 13, in denying access to a copy of a memo issued by the City Attorney regarding ineligible candidates for the November 2004 election?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified.</p> <p>Section 13.393 allows government entities to protect certain data from disclosure:</p> <p class="opinion_quote">Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15,17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.</p> <p>Section 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.</p> <p>In his comments, Mr. Vierling wrote:</p> <p class="opinion_quote">The document sought to be obtained by Ms. Feehan is an internal document to the law office which serves as legal counsel for the City... The document was prepared relative to the prospect of litigation by Ms. Feehan as it affects the application of her daughter, an under-aged minor, to run for public office in the City of St. Mary's Point, a matter which is prohibited both by statute and state constitution.</p> <p>Mr. Vierling stated that Ms. Feehan and her husband have commenced three lawsuits against the City in recent years. He wrote:</p> <p class="opinion_quote">Given the history of Rosemary Feehan and David Nelson, her husband, in commencing multiple matters of litigation against the [City] and further, in consideration of the fact that judicial determination has already been made on at least one case that their action was frivolous and unfounded, it was certainly anticipated by this office that the effort to mount a candidacy of an age inappropriate and ineligible candidate for office for the [City], which was illegal both under state statute as well as state constitution, was being initiated preparatory to lawsuit number 4, to be initiated against the [City] by the Feehan-Nelsons...</p> <p>Mr. Vierling further wrote, The internal memo prepared was directly addressed to that situation and not otherwise or routinely or generally prepared for any other purpose. It is, thus, entitled to work product - attorney-client protection under the law and is not a public document subject to a data practices request.</p> <p>Mr. Vierling provided to the Commissioner a copy of an article that appeared in the October 3, 2004, edition of the Saint Paul Pioneer Press. In it the reporter wrote, Feehan-Nelson said that if she receives the highest number of votes but is not certified, she is prepared to hire an attorney and take the matter to court.</p> <p>Mr. Vierling cited <em>City Pages v. State of Minnesota</em>, 655 N.W.2d 839 (Minn. Ct. App. 2003) and stated, The <em>City Pages</em> decision of the Minnesota appellate courts reaffirms the work product doctrine as contained within the privilege of the attorney-client relationship.</p> <p>The Commissioner agrees that government entities should review the <em>City Pages</em> case when making decisions about the classification of data created, collected, or maintained by attorneys. In essence, the issue before the Court was whether a law firm's billing records were public pursuant to Chapter 13. On the matter of refusal to disclose based on the attorney-client privilege, the Court wrote:</p> <p class="opinion_quote">Certainly, the public has a right to at least some of the government data contained in the billing records, and the attorney-privilege protects only data that renders legal advice and that might not have been disclosed absent the privilege... We conclude that the district court erred in deciding that the attorney-client privilege protected all the data in the billing records.</p> <p>Regarding refusal to disclose based on attorney work-product, the Court wrote, Therefore, to be protected by the doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation. The Court cited <em>Bieter Co. v. Blomquist</em>, 156 F.R.D. 173, 180 (D. Minn. 1994):</p> <p class="opinion_quote">Whether documents were prepared in anticipation of litigation is a factual determination. The test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.</p> <p>The Court found that the work-product doctrine did not protect the billing records in their entirety.</p> <p>In the situation currently before the Commissioner, because she has not seen the data in question, she cannot determine, with certainty, whether the City's refusal to disclose is appropriate.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Feehan raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Commissioner cannot determine whether the City of St. Mary's Point complied with Minnesota Statutes, Chapter 13, in denying access to a copy of a memo issued by the City Attorney regarding ineligible candidates for the November 2004 election. <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: February 9, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675162667212669772666762022-01-19T19:23:13Z266258266420266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267016" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-28T16:14:43ZIs Independent School District 15, St. Francis, in compliance with Minnesota Statutes, Chapter 13, in response to a September 29, 2004, request for access to "data that documents who the school board appointed as responsible authority for the District?"January 28, 2005; School District 15 (St. Francis)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On December 30, 2004, IPAD received a letter from William Gardner, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from Independent School District 15, St. Francis. </p><p> In response to Mr. Gardner's request, IPAD, on behalf of the Commissioner, wrote to Edward C. Saxton, Superintendent of the District. The purposes of this letter, dated January 3, 2005, were to inform him of Mr. Gardner's request and to ask him to provide information or support for the District's position. On January 12, 2005, IPAD received a response from Paul C. Ratwick, attorney for the District. </p><p> A summary of the facts follows. Mr. Gardner asked the District for access to data that document the District's appointment of its responsible authority. The District responded by providing Mr. Gardner with a copy of the minutes from its June 8, 1998, School Board meeting, and a copy of School Board Policy 510, which the Board adopted at that meeting. That Policy states that the District has designated the Director of Human Resources and Services as the authority responsible for personnel data. </p><p> In his comments to the Commissioner, Mr. Ratwick stated the following: </p><p class="opinion_quote"> The District has determined that naming the Director of Human Resources and Services as its Responsible Authority for personnel and employment data does not satisfy the MGDPA's requirement that a specific individual be appointed. </p><p class="opinion_quote"> On December 13, 2004, the School Board adopted a resolution (copy attached) adopting School Board Policy 415, specifically designating Mr. Jay J. Reker as its the [sic] Responsible Authority for student data. On January 10, 2005, the School Board adopted a resolution naming a specific individual, Mr. Jay J. Reker, as its Responsible Authority for all purposes and with regard to all governmental data. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Gardner asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Is Independent School District 15, St. Francis, in compliance with Minnesota Statutes, Chapter 13, in response to a September 29, 2004, request for access to data that documents who the school board appointed as responsible authority for the District? </td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the responsible authority in a school district is the individual designated by the governing body of that district who is responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law. Pursuant to Minnesota Rules, part 1205.0200, subpart 14, (C), the the school board shall appoint an individual who is an employee of the school district. </p><p> Mr. Ratwick acknowledged that the School Board erred when it adopted the provision of School Board Policy 510 that named the Director of Human Resources and Services as its Responsible Authority for personnel and employment data, because it did not satisfy the requirement under statute and rule that a specific individual be appointed. The Board has since properly appointed an individual as responsible authority for the District. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Garnder raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Independent School District 15, St. Francis, was not in compliance with Minnesota Statutes, Chapter 13, in response to a September 29, 2004, request for access to data, because at that time it had not appointed an individual as responsible authority; it has since done so, and is now in compliance. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: January 28, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2670162666272022-01-19T19:23:13Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268021" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-27T16:15:43ZDid the City of Lonsdale comply with Minnesota Statutes, Chapter 13, in regard to a July 21, 2004, request for access to the following data: all e-mails, letters, site plans, committee minutes, maps and or communications with consultants or developers that deal directly with any siting of utilities including the street lights that are placed within the Rolling Ridge development?January 27, 2005; City of Lonsdale36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On November 24, 2004, IPAD received a letter from David Anderson, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Lonsdale. Mr. Anderson's request required clarification with IPAD staff. </p><p> In response to Mr. Anderson's request, IPAD, on behalf of the Commissioner, wrote to Myles McGrath, (former) City Administrator. The purposes of this letter, dated December 16, 2004, were to inform him of Mr. Anderson's request and to ask him to provide information or support for the City's position. On January 10, 2005, IPAD received a response from Joel A. Erickson, current City Administrator. A summary of the facts follows. </p><p> In an e-mail to Mr. McGrath dated July 21, 2004, Mr. Anderson requested access to data regarding the placement of street lighting and other utilities in the development in which he resides. Mr. McGrath responded by e-mail the same day, acknowledged receipt of Mr. Anderson's request, and stated that Mr. Anderson's data request will be processed as quickly as possible. Our City Engineer is out on Vacation but will return the [following week.] </p><p> According to Mr. Anderson, as of the date of his opinion request, the City had not contacted him again about his request. </p><p> In his comments to the Commissioner, Mr. Erickson first stated that the City should have responded in a timelier manner than it did to Mr. Anderson's request. Mr. Erickson wrote that he has been employed by the City since December 14, 2004, and that, after receiving notice from the Commissioner about this opinion, I have extensively reviewed all emails, letters, site plans, committee minutes, maps and communications with developers and consultants dealing with the information Mr. Anderson is requesting. Mr. Erickson wrote that he subsequently contacted Mr. Anderson, and has since provided him with the data he requested. </p><p> Mr. Erickson also discussed reasons, including that the City was short-staffed, which contributed to the delay in its response to Mr. Anderson. Mr. Erickson stated that once he was aware of the request, he responded in an appropriate, prompt and timely manner. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Anderson asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Lonsdale comply with Minnesota Statutes, Chapter 13, in regard to a July 21, 2004, request for access to the following data: all e-mails, letters, site plans, committee minutes, maps and or communications with consultants or developers that deal directly with any siting of utilities including the street lights that are placed within the Rolling Ridge development? </td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) </p><p> According to Mr. Erickson, the City provided Mr. Anderson with the data he requested in January 2005, some five months after he requested it. The Commissioner acknowledges the circumstances Mr. Erickson described that contributed to the time frame in which the City responded; however, its response to Mr. Anderson was neither prompt nor within a reasonable time. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Anderson raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Lonsdale did not comply with Minnesota Statutes, Chapter 13, in regard to a July 21, 2004, request for access to data related to the placement of street lighting and other utilities within the Rolling Ridge development, because its response was neither prompt nor within a reasonable time. <p /></td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: January 27, 2005 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2680212022-01-19T19:23:13Z266258266262266263266263266323266324266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267708" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-27T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that School District 624 (White Bear Lake Area Schools) maintains: data in certain invoices relating to extended day care that the District provides for a particular child?January 27, 2005; School District 624 (White Bear Lake)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On December 8, 2004, IPAD received a letter dated December 6, 2004, from Karen Kepple, an attorney representing Independent School District 624. In her letter, Ms. Kepple asked the Commissioner to issue an advisory opinion regarding the classification of certain data the District maintains.</p> <p>A summary of the facts as Ms. Kepple provided them is as follows. She wrote:</p> <p class="opinion_quote">This letter is to request an advisory opinion... as to one parent's right to access data that includes both data about [his/her] child and private data about [his/her] former spouse, parent B. The data requested by parent A cannot be separated or redacted in a way which would effectively permit release of the data pertaining to the child, and prevent release of the private data pertaining to parent B.</p> <p>Ms. Kepple provided a copy of the data in question, in redacted form.</p> <p>Ms. Kepple further wrote:</p> <p class="opinion_quote">parent A, has requested invoices for the extended day care provided by [the District] for the benefit of [his/her] minor child. The school district recognizes that a non-custodial parent has the same right to access educational data about [his/her] child as the custodial parent. However, the request is complicated by the fact that the data requested pertaining to the child, is inseparable from the data specifically pertaining [sic] the contract parent B has with [the District] for the provision of day care services and [his/her] financial obligations to [the District] resulting from that contract</p> <p>Ms. Kepple explained that the District's directory information policy provides that the name, address, and telephone number of a student's parent(s) are public data.</p> <p>She stated:</p> <p class="opinion_quote">Thus, under school district policy, other data relating to a parent is private data and cannot be released to the other parent, absent the parent's written consent. Parent B objects strongly to the release of the invoices to parent A. The school district has released, upon request of parent A, the months and years of attendance at the day care program, which is data pertaining to the child, but not the actual invoices for those dates of attendance, as requested by parent A.</p> <hr /> <br /> <h2>Issue:</h2> <p>In her request for an opinion, Ms. Kepple asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that School District 624 (White Bear Lake Area Schools) maintains: data in certain invoices relating to extended day care that the District provides for a particular child?</td> </tr> </tbody> </table> <hr /> <h2>Discussion:</h2> <p>The Commissioner notes that the analysis in this opinion is based upon the assumption that the data about the child of parent A and B are educational data; therefore, they are classified pursuant to Minnesota Statutes, section 13.32.</p> <p>Pursuant to section 13.32, subdivision 2(c), data concerning parents are classified as private data on individuals but school districts have the option of designating them as public directory information. (See also section 13.32, subdivision 5.) Ms. Kepple provided a copy of the District's policy on <em>Protection and Privacy of Pupil Records</em>, which states that the name, address, and telephone number of a student's parent(s) are public directory information. Given the category types in the invoices, i.e., date, category, child, class, description, charges, credits payments, and balance, it appears that most, if not all, of the data in the invoices are private data about parent B and the child.</p> <p>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 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.)</p> <p>Pursuant to section 13.04, parent A is entitled to gain access to any data in the invoices of which s/he is the subject. In addition, pursuant to section 13.02, subdivision 8, and Minnesota Rules, section 1205.0500, subpart 2, parent A also is entitled to gain access to data of which his/her child is the subject.</p> <p>In her opinion request, Ms. Kepple noted that the District already has released to Parent A the months and years the child attended the day care program. The issue before the Commissioner is whether the District may release the data in the invoices.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447" title="02-042" target="_blank">Advisory Opinion 02-042</a>, the Commissioner addressed a similar situation:</p> <p class="opinion_quote">...Neither the statute nor the implementing rules address the issue that Rice County raised in its response to X's opinion request, i.e., what should a government entity do when a parent requests access to data about his/her minor child and release of the data about the minor may inadvertently or directly reveal data about the other parent?</p> <p class="opinion_quote">In many situations where government entities maintain data about a minor child, particularly when the parents were never married or currently are divorced, one can argue that release of any data about the child in response to a data request by one of the parents will inadvertently or directly release data about the other parent.</p> <p class="opinion_quote">However, as stated above, the Legislature has placed great import on the policy that parents are entitled, in most cases, to gain access to data about their children. Therefore, a government entity should not be precluded from providing data to one parent simply because doing so may mean the entity inadvertently or directly releases data about the other parent. To accept the contrary view would, in many instances, effectively and absolutely thwart the legislative policy set forth in section 13.02, subdivision 8.</p> <p>The Commissioner finds it appropriate to comment that in a recent unpublished case, the Minnesota Court of Appeals deliberated on the issues discussed in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447" title="02-042" target="_blank">02-042</a> and concluded that the custodial parent was the subject of the data, not the child. The Court stated:</p> <p class="opinion_quote">The name of [the child] only appears in the file incidentally in relation to [the custodial parent's] benefits application. Therefore, because any references to [the child] are 'only incidental to the data and the data [is] not accessed by the name or other identifying data of [the child], [the non-custodial parent] is not entitled to access the remaining portions of [the custodial parent's] file.</p> <p><em>Seeber v. Weiers</em>, et al., No. A04-288 (Minn. Ct. App. October 12, 2004) (unpublished).</p> <p>It is important to note that the <em>Seeber</em> case is unpublished and, pursuant to Minnesota Statutes, section 480A.08, subdivision 3, carries no precedential value. Thus, it does not control the outcome here.</p> <p>When a government entity is faced with redacting a document containing private data on multiple data subjects, it is important for the entity to review the document carefully to determine whether the release of private data to one data subject will result in the inappropriate release of private data about another data subject. Here, the District is in the best position to make such determinations because it has all of the relevant information and is knowledgeable about the circumstances. The Commissioner, though, offers the following guidance. Pursuant to section 13.04, parent A is entitled to gain access to any data in the invoices of which s/he is the subject. In addition, pursuant to section 13.02, subdivision 8, and Minnesota Rules, section 1205.0500, subpart 2, parent A also is entitled to gain access to data of which his/her child is the subject, i.e., the child's name or other identifying data are not incidental to the other data in the document(s).</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Kepple raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, it appears that certain invoices relating to extended day care that School District 624 (White Bear Lake Area Schools) provides for a particular child contain private data about Parent B and the child. Parent A is entitled to gain access to any data of which A or A's child is the subject.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 27, 2005</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677082663252663862665332665422665432023-04-04T12:41:59Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266637" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-26T16:14:43ZDid the Minnesota Department of Health comply with Minnesota Statutes, Chapter 13, in its response to an October 4, 2004, request for access to the following data: "addresses of homes participating in the water testing program as well as the corresponding test results (including lead and copper)"?January 26, 2005; Minnesota Department of Health36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On December 8, 2004, IPAD received a letter from Mike Maybay, on behalf of KSTP-TV, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the Minnesota Department of Health (MDH) maintains. </p><p> In response to Mr. Maybay's request, IPAD, on behalf of the Commissioner, wrote to Dianne Mandernach, Commissioner of MDH. The purposes of this letter, dated December 13, 2004, were to inform her of Mr. Maybay's request and to ask her to provide information or support for the Department's position. On December 20, 2004, IPAD received a response from Commissioner Mandernach. </p><p> A summary of the facts follows. In his opinion request, Mr. Maybay related his attempts, beginning in May or June of 2004, to gain access to data related to MDH's water testing program. Mr. Maybay directed his initial requests to Department staff; he requested access to the data from Commissioner Mandernach, as responsible authority, in a letter dated October 4, 2004. Mr. Maybay described the data he sought: </p><p class="opinion_quote"> The Health Department's Drinking Water Protection Program collects samples of drinking water from homes across the state. Those samples are tested for the presence of many substances including lead and copper. Health uses the test results to identify communities whose water systems may be in need of improving for the health and safety of their residents. </p><p> In his opinion request, Mr. Maybay wrote to the Commissioner that he worked with a Department staff person to help me better understand the data they keep so that I could formulate a request to get the data in a form that would be useful to me. Mr. Maybay wrote: </p><p class="opinion_quote"> At one point, I believe in late June, [staff] told me she would be asking a supervisor whether the data I was requesting could, in fact, be released to me. When I heard back from her, [she] informed me that she had been told that the Department of Health would be attempting to have IPAD temporarily classify the addresses of the tested homes as non-public. This was confirmed by a person in the Department's Communications department. </p><p class="opinion_quote"> From your office I have learned Health submitted an application to IPAD on August 2. That application was returned to Health with a request for further information. As of this letter [dated December 8, 2004], I do not believe Health has responded to that request. </p><p> Commissioner Mandernach responded to Mr. Maybay's October 4, 2004, request, in a letter dated October 8, 2004, in which she stated that the Department would not provide him with access to the addresses of homes participating in the water testing program. What follows are excerpts from her comments to Mr. Maybay: </p><p class="opinion_quote"> We believe the release of this data would constitute an invasion of privacy for the people living in those homes and would seriously erode participation in this voluntary program, eventually rendering it unworkable. </p><p class="opinion_quote"> The data we seek to protect are not classified as private or nonpublic under current law. However, the Data Practices Act allows a state agency or political subdivision to apply to the Commissioner of Administration for temporary classification of data as [not public] (see Minnesota Statutes, section 13.06). The Department of Health and four political subdivisions (the St. Paul Board of Water Commissioners and the Cities of New Hope, Virginia, and Moorhead) have submitted such an application to the Department of Administration, seeking to classify [the data in question as not public]. </p><p class="opinion_quote"> The Department of Administration returned the Department's initial application with a request for additional information and also verification that requests from two of the participating political subdivisions had been made by each subdivision's 'responsible authority,' as that term is defined in the Data Practices Act. We have requested the additional information from the participating political subdivisions, and are awaiting their response. The application will be resubmitted in the near future. </p><p class="opinion_quote"> The Department intends to maintain data about individual homes and homeowners as if the data were private or nonpublic data until such time as the Commissioner of Administration approves or rejects our request for temporary classification on its merits. The Data Practices Act requires an agency to provide data as soon as reasonably possible after the agency receives a request. MDH considers the time during which our temporary classification is pending to be part of the reasonable amount of time we are allowed. </p><p> The Department submitted two applications for temporary classification on August 2, 2004. After reviewing the applications, IPAD staff informed the Department on August 9, 2004, that significant issues needed to be addressed before the applications could be considered complete and in compliance with the statutory requirements set forth at section 13.06, and therefore subject to action by the Commissioner. </p><p> On December 16, 2004, the Department submitted to the Commissioner two applications for temporary classification of the data in question. In a letter dated January 24, 2005, IPAD notified the Department that those applications were not complete and in compliance with statutory requirements, and, therefore, the Commissioner will not take any official action on those applications until the Department resolves the issues identified by IPAD. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Maybay asked the Commissioner to address the following issue: </p><dd><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Did the Minnesota Department of Health comply with Minnesota Statutes, Chapter 13, in its response to an October 4, 2004, request for access to the following data: addresses of homes participating in the water testing program as well as the corresponding test results (including lead and copper) ?</td></tr></tbody></table><p /><hr /><p /><p><br /></p><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by statute, federal law, or temporary classification pursuant to section 13.06. The Department acknowledges that the data in question are public. </p><p> Under section 13.06, a government entity may submit to the Commissioner an application for temporary classification, for permission to classify data as not public until a proposed statute can be acted upon by the Legislature. Once the application is complete and in compliance with statutory requirements, the data which are the subject of the application are classified as set forth in the application for a period of 45 days, or until the application is disapproved, rejected, or granted by the Commissioner, whichever is earlier. </p><p> At the time Mr. Maybay requested access to the data, there were no applications for temporary classification before the Commissioner, and, as of this date, the applications the Department submitted on December 16, 2004, are not before the Commissioner. The Commissioner acknowledges the reasons Commissioner Mandernach cited in support of the Department's position that it was reasonable under the circumstances to deny public access to the data in question. However, there is no statutory basis for that position; the data are public. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Maybay raised is as follows: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">The Minnesota Department of Health did not comply with Minnesota Statutes, Chapter 13, because it denied an October 4, 2004, request for access to public government data. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: January 26, 2005 </p><hr /><br /><p /></dd></div></body></div>2666372665042022-01-19T19:23:12Z266258266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266739" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-07T16:17:43ZDid Independent School District 700, Hermantown, comply with Minnesota Statutes, Chapter 13, when it released certain data about an employee to the employee's labor union?January 7, 2005; School District 700 (Hermantown)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 19, 2004, IPAD received a letter dated November 18, 2004, from X. In X's letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data that Independent School District 700, Hermantown, maintains.</p> <p>IPAD, on behalf of the Commissioner, wrote to Fred Majeski, District Superintendent, in response to X's request. The purposes of this letter, dated November 29, 2004, were to inform him of X's request and to ask him to provide information or support for the District's position. On December 15, 2004, IPAD received a response, dated same, from Kevin Rupp and Jennifer Wolf, attorneys representing the District.</p> <p>A summary of the facts as provided by X is as follows. X wrote:</p> <p class="opinion_quote">I have been having problems with the Superintendent... sending my personnel information from my personnel file to my labor union without my permission. I've been told by my attorney that I should be the one to decide when and if I want it released to my Labor Union.</p> <p class="opinion_quote">At the time the documents were released to the union I wasn't involved in any grievances. And it seems to me that they would fall under the category of private information.</p> <p>With his/her opinion request, X attached copies of four memoranda from Superintendent Majeski to X - one dated in June of 2003, two dated in August of 2003, and one dated in January of 2004. Each of the documents apparently had been copied to X's labor representative.</p> <hr /> <br /> <h2>Issue:</h2> <p>In X's request for an opinion, Mr. and Mrs. X asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did Independent School District 700, Hermantown, comply with Minnesota Statutes, Chapter 13, when it released certain data about an employee to the employee's labor union?</td> </tr> </tbody> </table> <hr /> <p><br /></p> <h2>Discussion:</h2> <p>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.</p> <p>Section 13.43, subdivision 6, provides, in relevant part:</p> <p class="opinion_quote">Personnel data may be disseminated to labor organizations to the extent that the responsible authority determines that the dissemination is necessary to conduct elections, notify employees of fair share fee assessments, and implement the provisions of chapters 179 and 179A.</p> <p>In the case of this opinion, the data in the memoranda appear to relate to X's performance of his/her job. As such, they are private pursuant to section 13.43, subdivision 4. In their comments, Mr. Rupp and Ms. Wolf wrote:</p> <p class="opinion_quote">...The letters X attached to X's opinion request] outlined certain job performance expectations for [X]. [X] asks whether the District complied with Minnesota Statutes, Chapter 13, when it released certain data about [X] to [his/her] labor union.</p> <p class="opinion_quote">[X] is a District employee and a member of the Hermantown Federation of Teachers, Paraprofessional and School Related Personnel Unit...[X's] terms and conditions of employment are governed by a Master Agreement, which is negotiated between the District and the bargaining unit. As a member of that bargaining unit, [X] receives the benefit of union representation in matters involving job performance...</p> <p class="opinion_quote">During [X's] employment, [X] has had several performance related issues. Fred Majeski, the District's Superintendent and the responsible authority under [Minnesota Statutes, Chapter 13], has had several discussions with [X] regarding those issues. After some of those conversations, [X] would discuss those performance issues with [X's] union representative, who would then contact Mr. Majeski. Often times, [X] would misconstrue the facts when [X] related them to [the] union representative. Mr. Majeski would then need to clarify the actual situation to [X's] union representative. Furthermore, [X's] union representative was part of at least one meeting in August 2003 regarding [X's] performance expectations. Based on the union representative's prior involvement in [X's] performance issues and Mr. Majeski's previous experiences with [X], Mr. Majeski made a determination that in order to effect [X's] rights under [the Public Employees Labor Relations Act] and the collective bargaining agreement, he should send a copy to the union of the letters at issue...</p> <p class="opinion_quote">The District does not have a policy regarding providing information to exclusive bargaining representatives. Rather, it makes a determination whether to disseminate the information on a case by case analysis and pursuant to the limitations of Chapter 13.</p> <p>Mr. Rupp and Ms. Wolf further assert that Mr. Majeski, in implementing certain provisions of Chapter 179A, acted appropriately in releasing the data.</p> <p>The Commissioner has the following comments. In reviewing the provisions of Chapter 179A cited by Mr. Rupp and Ms. Wolf, namely sections 179A.06, and 179A.07, it is not clear that to implement them, the release of X's data was necessary.</p> <p>However, there appears to be a factual dispute regarding whether X may have given some type of consent for the union representative to gain access to the data. X wrote that X was not involved in any grievances at the time the District released the documents and that s/he had not given permission for the release of the data. Conversely, Mr. Rupp and Ms. Wolf stated that the union representative was part of at least one meeting in August 2003 regarding [X's] performance expectations, and that X was discussing those performance issues with [his/her] union representative, who would then contact Mr. Majeski. The Commissioner cannot resolve this dispute.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that X raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Commissioner cannot determine, with certainty, whether Independent School District 700, Hermantown, complied with Minnesota Statutes, Chapter 13, when it released certain data about an employee to the employee's labor union.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 7, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2667392667382022-01-19T19:23:12Z266258513961266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266477" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-07T16:16:43ZIs the Rock County Sheriff's Office in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?January 7, 2005; Rock County Sheriff's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 3, 2004, IPAD received a letter from Greg LaFond, City Administrator for the City of Luverne. IPAD required clarification from Mr. LaFond, which he provided on December 1, 2004. Mr. LaFond asked the Commissioner to issue an advisory opinion regarding the Rock County Sheriff's Office's response to a request for access to its written data practices procedures, as required under Minnesota Statutes, section 13.03, subdivision 2(b). Mr. LaFond requested the same data from Rock County and the Rock County Auditor-Treasurer's Office. The Commissioner addresses the issues involving the latter two entities in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/268005" title="05-001" target="_blank">05-001</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-268003#/detail/appId/1/id/268006" title="05-002" target="_blank">05-002</a>.</p> <p>In response to Mr. LaFond's request, IPAD, on behalf of the Commissioner, wrote to Mike Winkels, Rock County Sheriff and responsible authority. The purposes of this letter, dated December 6, 2004, were to inform him of Mr. LaFond's request and to ask him to provide information or support for the Sheriff's Office's position. On December 21, 2004, IPAD received a response from Donald R. Klosterbuer, Rock County Attorney, on behalf of the County, the County Auditor-Treasurer's Office and the County Sheriff's Department.</p> <p>A summary of the facts follows. In his opinion request, Mr. LaFond stated that the City had attempted, unsuccessfully, to obtain a copy of Rock County's public data access procedures.</p> <p>In his response to the Commissioner, Mr. Klosterbuer stated that the County has consistently maintained a policy and practice of complying with Minnesota Statutes, Chapter 13. Mr. Klosterbuer described efforts the County has taken to comply with Chapter 13, both before and subsequent to Mr. LaFond's opinion request. He also stated:</p> <p class="opinion_quote">The County has not adopted any single source data practices policy and, in particular, has not specifically adopted the concise and specific written procedures apparently contemplated by Minnesota Statutes section13.03, subd.2. When the County first became aware in early November of the initial complaint filed by [Mr.] LaFond, [Mr.] Oldre contacted your office in regards to the same. . . . .</p> <p class="opinion_quote">Since that time, County administration has undertaken a concerted effort to bring the County into compliance with written requirements of the statute. . . . .</p> <p class="opinion_quote">More importantly, we would also indicate that the County has consistently complied with the provisions of Minnesota Statutes Chapter 13 as relates [sic] to the provision of public data. I do not have any recollection of an instance where my office has been advised by any party of the County's failure to provide the data requested. Based on the same, it is our office's belief that the County, and all of its officials, have been in substantive compliance with the substantive provisions of Minnesota Statute [sic] Chapter 13 even if [the] County may not have been in technical compliance with the written requirements. While we certainly recognize that the 'written form requirements' of the statute have legitimate purposes, we do believe that substantive compliance with the intent of the law is perhaps paramount to 'technical concerns'.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. LaFond asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the Rock County Sheriff's Office in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 2 (a), states: [t]he responsible authority in every state agency, political subdivision, and statewide system shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.</p> <p>Minnesota Statutes, section 13.03, subdivision 2 (b), states:</p> <p class="opinion_quote">The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.</p> <p>The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. The Commissioner acknowledges the County's efforts to comply with the requirements of Chapter 13. However, according to Mr. Klosterbuer, Rock County is working on, but has not yet adopted its public access procedures. Therefore, the County is not in compliance with Chapter 13. <br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Mr. LaFond is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Rock County Sheriff's Office is not in compliance with Minnesota Statutes, Chapter 13, because it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 7, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2664772664262022-01-19T19:23:10Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268006" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-07T16:15:43ZIs the Rock County Auditor/Treasurer's Office in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?January 7, 2005; Rock County Auditor/Treasurer's Office36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 3, 2004, IPAD received a letter from Greg LaFond, City Administrator for the City of Luverne. IPAD required clarification from Mr. LaFond, which he provided on December 1, 2004. Mr. LaFond asked the Commissioner to issue an advisory opinion regarding the Rock County Auditor/Treasurer's Office's response to a request for access to the County's written data practices procedures, as required under Minnesota Statutes, section 13.03, subdivision 2(b). Mr. LaFond requested the same data from Rock County and the Rock County Sheriff's Department. The Commissioner addresses the issues involving the latter two entities in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/268005" title="05-001" target="_blank">05-001</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/266477" title="05-003" target="_blank">05-003</a>.</p> <p>In response to Mr. LaFond's request, IPAD, on behalf of the Commissioner, wrote to Gloria Rolfs, Rock County Auditor-Treasurer and responsible authority. The purposes of this letter, dated December 6, 2004, were to inform her of Mr. LaFond's request and to ask him to provide information or support for the County Auditor-Treasurer's position. On December 21, 2004, IPAD received a response from Donald R. Klosterbuer, Rock County Attorney, on behalf of the County, the County Auditor-Treasurer's Office and the County Sheriff's Department.</p> <p>A summary of the facts follows. In his opinion request, Mr. LaFond stated that the City had attempted, unsuccessfully, to obtain a copy of the Rock County Auditor/Treasurer's Office's public data access procedures.</p> <p>In his response to the Commissioner, Mr. Klosterbuer stated that the County has consistently maintained a policy and practice of complying with Minnesota Statutes, Chapter 13. Mr. Klosterbuer described efforts the County has taken to comply with Chapter 13, both before and subsequent to Mr. LaFond's opinion request. He also stated:</p> <p class="opinion_quote">The County has not adopted any single source data practices policy and, in particular, has not specifically adopted the concise and specific written procedures apparently contemplated by Minnesota Statutes section13.03, subd.2. When the County first became aware in early November of the initial complaint filed by [Mr.] LaFond, [Mr.] Oldre contacted your office in regards to the same. . . . .</p> <p class="opinion_quote">Since that time, County administration has undertaken a concerted effort to bring the County into compliance with written requirements of the statute. . . . .</p> <p class="opinion_quote">More importantly, we would also indicate that the County has consistently complied with the provisions of Minnesota Statutes Chapter 13 as relates [sic] to the provision of public data. I do not have any recollection of an instance where my office has been advised by any party of the County's failure to provide the data requested. Based on the same, it is our office's belief that the County, and all of its officials, have been in substantive compliance with the substantive provisions of Minnesota Statute [sic] Chapter 13 even if [the] County may not have been in technical compliance with the written requirements. While we certainly recognize that the 'written form requirements' of the statute have legitimate purposes, we do believe that substantive compliance with the intent of the law is perhaps paramount to 'technical concerns'.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. LaFond asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the Rock County Auditor/Treasurer's Office in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 2 (a), states: [t]he responsible authority in every state agency, political subdivision, and statewide system shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.</p> <p>Minnesota Statutes, section 13.03, subdivision 2 (b), states:</p> <p class="opinion_quote">The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.</p> <p>The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. The Commissioner acknowledges the County's efforts to comply with the requirements of Chapter 13. However, according to Mr. Klosterbuer, Rock County is working on, but has not yet adopted its public access procedures. Therefore, the County is not in compliance with Chapter 13.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Mr. LaFond is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Rock County Auditor/Treasurer's Office's is not in compliance with Minnesota Statutes, Chapter 13, because it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 7, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2680062022-01-19T19:23:10Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268005" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2005-01-07T16:14:43ZIs Rock County in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?January 7, 2005; Rock County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On November 3, 2004, IPAD received a letter from Greg LaFond, City Administrator for the City of Luverne. IPAD required clarification from Mr. LaFond, which he provided on December 1, 2004. Mr. LaFond asked the Commissioner to issue an advisory opinion regarding Rock County's response to a request for access to the County's written data practices procedures, as required under Minnesota Statutes, section 13.03, subdivision 2(b). Mr. LaFond requested the same data from the Rock County Auditor-Treasurer's Office and the Rock County Sheriff's Department. The Commissioner addresses the issues involving the latter two entities in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/268006" title="05-002" target="_blank">05-002</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/266477" title="05-003" target="_blank">05-003</a>.</p> <p>In response to Mr. LaFond's request, IPAD, on behalf of the Commissioner, wrote to Kyle Oldre, Rock County Administrator and responsible authority. The purposes of this letter, dated December 6, 2004, were to inform him of Mr. LaFond's request and to ask him to provide information or support for the County's position. On December 21, 2004, IPAD received a response from Donald R. Klosterbuer, Rock County Attorney, on behalf of the County, the County Auditor-Treasurer's Office and the County Sheriff's Department.</p> <p>A summary of the facts follows. In his opinion request, Mr. LaFond stated that the City had attempted, unsuccessfully, to obtain a copy of Rock County's public data access procedures.</p> <p>In his response to the Commissioner, Mr. Klosterbuer stated that the County has consistently maintained a policy and practice of complying with Minnesota Statutes, Chapter 13. Mr. Klosterbuer described efforts the County has taken to comply with Chapter 13, both before and subsequent to Mr. LaFond's opinion request. He also stated:</p> <p class="opinion_quote">The County has not adopted any single source data practices policy and, in particular, has not specifically adopted the concise and specific written procedures apparently contemplated by Minnesota Statutes section13.03, subd.2. When the County first became aware in early November of the initial complaint filed by [Mr.] LaFond, [Mr.] Oldre contacted your office in regards to the same. . . . .</p> <p class="opinion_quote">Since that time, County administration has undertaken a concerted effort to bring the County into compliance with written requirements of the statute. . . . More importantly, we would also indicate that the County has consistently complied with the provisions of Minnesota Statutes Chapter 13 as relates [sic] to the provision of public data. I do not have any recollection of an instance where my office has been advised by any party of the County's failure to provide the data requested. Based on the same, it is our office's belief that the County, and all of its officials, have been in substantive compliance with the substantive provisions of Minnesota Statute [sic] Chapter 13 even if [the] County may not have been in technical compliance with the written requirements. While we certainly recognize that the 'written form requirements' of the statute have legitimate purposes, we do believe that substantive compliance with the intent of the law is perhaps paramount to 'technical concerns'.</p> <hr /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. LaFond asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is Rock County in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Minnesota Statutes, section 13.03, subdivision 2 (a), states: [t]he responsible authority in every state agency, political subdivision, and statewide system shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.</p> <p>Minnesota Statutes, section 13.03, subdivision 2 (b), states:</p> <p class="opinion_quote">The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.</p> <p>The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. The Commissioner acknowledges the County's efforts to comply with the requirements of Chapter 13. However, according to Mr. Klosterbuer, Rock County is working on, but has not yet adopted its public access procedures. Therefore, the County is not in compliance with Chapter 13.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Mr. LaFond is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Rock County is not in compliance with Minnesota Statutes, Chapter 13, because it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: January 7, 2005</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2680052022-01-19T19:23:10Z266258266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267032" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-12-15T16:14:43ZDid the Minnesota Racing Commission comply with Minnesota Statutes, Chapter 13, in responding to an individual's August 16, 2004, request for the following data relating to a trainer's test: "the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade"?December 15, 2004; Minnesota Racing Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On October 25, 2004, IPAD received a letter dated October 21, 2004, from Peter Nickitas, on behalf of his client, X. In the letter, Mr. Nickitas asked the Commissioner to issue an advisory opinion regarding X's access to certain data that the Minnesota Racing Commission maintains.</p> <p>In response to Mr. Nickitas' request, IPAD, on behalf of the Commissioner, wrote to Richard Krueger, Executive Director of the Commission. The purposes of this letter, dated October 28, 2004, were to inform him of Mr. Nickitas' request and to ask him to provide information or support for Commission's position. On November 4, 2004, IPAD received a response, dated November 3, 2004, from Mr. Krueger.</p> <p>A summary of the facts as Mr. Nickitas provided them is as follows. In an email dated August 16, 2004, X wrote to the Commission:</p> <p class="opinion_quote">Last Friday, I made a request for data under [Chapter 13] for data concerning a...test that was taken 9/5/2000. I will again be coming to the MRC office this coming Friday, August 20, 2004 to make that same request. The request is for the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade. At that time it is requested that a person delegated by the MRC be able to review the test that was taken in September, 2000 with [me.] [I have] and continue to contend that [I] submitted a test to the stewards that would have passed if fairly graded in 2000. [I] based on the data practices act can demand to see the test for six years and [am] exercising [my] rights for access to the data.</p> <p>Apparently, the Commission responded in an email on August 19, 2004:</p> <p class="opinion_quote">In reply to your e-mail, the Minnesota Racing Commission is denying your request in reference to the trainer's test. We feel we have completely answered your questions on previous requests....</p> <p class="opinion_quote">In reference to your application for a...license, we are returning your application and licensing fee....</p> <p class="opinion_quote">We are also requesting that you do not come to the MRC [Minnesota Racing Commission] office tomorrow, Friday, August 20th or any time in the future....</p> <p>In his opinion request, Mr. Nickitas wrote:</p> <p class="opinion_quote">[X] wrote a letter to the Racing Commission dated August 16, 2004, requesting access to data of and concerning him in the Commission's possession or control. Specifically, [X] demanded access to the score sheet for the...exam [X] took...in 2000, and all other data accessible to him under Minn. section 13.34....The Commission admits that [X] took the written test in question. The Commission refused him access, in its e-mail dated 20 August 2004.</p> <hr /> <br /> <h2>Issue:</h2> <p>In Mr. Nickitas' request for an opinion, he asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Did the Minnesota Racing Commission comply with Minnesota Statutes, Chapter 13, in responding to an individual's August 16, 2004, request for the following data relating to a trainer's test: the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade ?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>Of relevance to this opinion, section 13.34, examination data, states:</p> <p class="opinion_quote">Data consisting solely of testing or examination materials, or scoring keys used to determine individual qualifications for appointment or promotion in public service, or used to administer a licensing examination, or academic examination, the disclosure of which would compromise the objectivity or fairness of the testing or examination process are classified as nonpublic, except pursuant to court order. Completed versions of personnel, licensing, or academic examinations shall be accessible to the individual who completed the examination, unless the responsible authority determines that access would compromise the objectivity, fairness, or integrity of the examination process. Notwithstanding section 13.04, the responsible authority shall not be required to provide copies of completed examinations or answer keys to any individual who has completed an examination.</p> <p>In his comments to the Commissioner, Mr. Krueger wrote:</p> <p class="opinion_quote">The issue that the Commissioner desires to address in an advisory opinion regarding our not responding to an individual's request relating to a trainer's test; the test or copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade? , is quite simple, we don't have the material requested.</p> <p class="opinion_quote">It is customary that we review the results of a test with the person taking the test, but we do not give them a copy of the test... I've indicated this to [X] many times. I have discussed this matter with the Chief Steward at that time who administered the test to [X]. At this time he has no records in his possession regarding this matterhellip;.</p> <p class="opinion_quote">In short, we have no record to produce for [X]...</p> <p>When X made his/her data request on August 16, 2004, the Commission was required to respond by (1) advising X that the data do not exist; (2) advising X that the data are classified so as to deny X access; or (3) arranging a time for X to inspect the requested data. Regarding any data of which X is the subject, the Commission was required to respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Regarding any data of which X is not the subject, the Commission was required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>The Commission's August 20, 2004, email did not contain any of the possible appropriate responses listed above; rather, it states, We feel we have completely answered your questions on previous requests. However, Mr. Krueger, in his comments to the Commissioner, did not explain how or when the Commission previously had answered X's data request. Thus, in the Commissioner's opinion, the Commission did not comply with Chapter 13 in its response to X's August 16, 2004, request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Nickitas raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">The Minnesota Racing Commission did not comply with Minnesota Statutes, Chapter 13, in responding to an individual's August 16, 2004, request for the following data related to a trainer's test: the test of copy of the test, the scorecard, answer key and the percentages necessary to have a passing grade.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: December 15, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2670322669282022-01-19T19:25:53Z266258266279266315266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267843" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-29T16:15:43ZDid the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request to gain access to the addresses of those businesses and individuals who are the ultimate recipients of either loans or grants from the Neighborhood STAR program? November 29, 2004; City of Saint Paul36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History:</h2> <p>On October 20, 2004, IPAD received a letter dated October 13, 2004, from Toni Coleman of the <em>Saint Paul Pioneer Press</em>. In her letter, Ms. Coleman asked the Commissioner to issue an advisory opinion regarding her access to certain data that the City of Saint Paul maintains.</p> <p>In response to Ms. Coleman's request, IPAD, on behalf of the Commissioner, wrote to Donald Luna, City Clerk. The purposes of this letter, dated October 21, 2004, were to inform him of Ms. Coleman's request and to ask him to provide information or support for City's position. On November 1, 2004, IPAD received a response, dated October 29, 2004, from Peter McCall, Assistant City Attorney.</p> <p>A summary of the facts as Ms. Coleman provided them is as follows. In an email dated April 23, 2004, Ms. Coleman wrote to City staff:</p> <p class="opinion_quote">...I need addresses for all of the STAR [Neighborhood Sales Tax Revitalization Program] grant awardees. More precisely, I need the address where the brick and mortar improvements were made. For example, if a local CDC received money to rehab five homes, having the address of the CDC doesn't really help me. I'd like to know the address of the five homes where that money was spent. I'm thinking that information is only in the files of each grant. In that case, I'd need to inspect each file and retrieve that info. If I'm wrong and you somehow have the addresses for all awardees on a handy little Excel file somewhere, let me know.</p> <p>In an email dated May 3, 2004, City staff responded, Unfortunately, I'm unable to provide you with the Neighborhood STAR program participants' names and addresses through the CDC's.</p> <p>Staff cited Minnesota Statutes, section 13.591, subdivision 2, and wrote, Assistant City Attorney Peter McCall has advised us that the customer lists of the CDC's are covered under this statute.</p> <hr /> <br /> <h2>Issue:</h2> <p>In her request for an opinion, Ms. Coleman asked Commissioner to address the following issue:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a request to gain access to the addresses of those businesses and individuals who are the ultimate recipients of either loans or grants from the Neighborhood STAR program?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Before proceeding, the Commissioner notes the following. Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by a government entity. Data maintained by organizations other than government entities are sometimes subject to the requirements of Chapter 13 because the organizations have a contractual relationship with a government entity. In the present case, the Commissioner assumes the pass-through organizations, via contracts, are acting as government entities or agents of the City. (See section 13.05, subdivision 11.) If the contracts do not contain language regarding Chapter 13, such language is implied. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267447#/detail/appId/1/id/267691" title="04-009" target="_blank">Advisory Opinion 04-009</a> and <em>WDSI, Inc. v. The County of Steele</em>, 672 N.W.2d 617 (Minn.App. 2003).) Thus, for purposes of this opinion, it is assumed the data the ultimate recipients submit to either the City or the pass-through organizations are government data and, as such, are governed by Chapter 13.</p> <p>Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.</p> <p>In his comments to the Commissioner, Mr. McCall wrote:</p> <p class="opinion_quote">By a special law enacted by the legislature...the City of Saint Paul was given the right to collect a sales tax and spend it on projects to further cultural, residential, commercial and economic development in the city. The City has adopted Neighborhood Guidelines in the administration of the program. Eligible applicants for sales tax funds are public, private and non profit entities which do <em>business</em> within the City. [Emphasis provided.]</p> <p class="opinion_quote">An applicant for sales tax funds submits an application to the City that describes the intended use of the sales tax funds. The applications that are pertinent to the issue described in your letter provides [sic] that the funds will be used for the applicant's <em>customers</em>....[Emphasis provided.]</p> <p class="opinion_quote">Upon receiving the request from the Pioneer Press to gain access to the identities of the CDC's [Community Development Corporation] <em>customers</em>, a review of Minn Stat 13.591 was made. Minn Stat 13.591, Subd. 1 provides that <em>customer lists</em> (and other data) submitted to the City by a <u>business</u> requesting financial assistance are private and nonpublic data, and under Subd. 2 <em>customer lists</em> remain private or nonpublic even after assistance is given by the City....[Emphasis provided.]</p> <p>The Commissioner's understanding is that, at a minimum, both nonprofit entities and for-profit businesses may apply to serve as pass-throughs to the STAR program for loans and grants for capital improvement projects in Saint Paul neighborhoods.</p> <p>The City's argument is that section 13.591 classifies as private the addresses of those businesses and individuals who are the ultimate recipients of either loans or grants from the STAR program. Section 13.591, subdivision 1, states:</p> <p class="opinion_quote">The following data, that are submitted to a government entity by a business requesting financial assistance or a benefit financed by public funds, are private or nonpublic data: financial information about the business, including credit reports; financial statements; net worth calculations; business plans; income and expense projections; balance sheets; customer lists; income tax returns; and design, market, and feasibility studies not paid for with public funds.</p> <p>Subdivision 2 of section 13.591 states:</p> <p class="opinion_quote">Data submitted to a government entity under subdivision 1 become public when public financial assistance is provided or the business receives a benefit from the government entity, except that the following data remain private or nonpublic: business plans; income and expense projections not related to the financial assistance provided; customer lists; income tax returns; and design, market, feasibility studies not paid for with public funds.</p> <p>The Commissioner makes the following comments. Section 13.591 does not define the word <em>business</em>. It is customary, therefore, to look to its common and approved usage. (See Minnesota Statutes, section 645.08.) <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines business as, a usually commercial or mercantile activity engaged in as a means of livelihood. In the Commissioner's opinion, when the Legislature enacted section 13.591, it intended to classify, as not public, certain data submitted to government entities by businesses that operate for profit, as opposed to entities that operate as nonprofits.</p> <p>Thus, when the City provides a loan or grant, and the ultimate beneficiary either is an individual or an entity other than a for-profit, the addresses of those individuals or organizations are public pursuant to section 13.03, subdivision 1. When the City provides a loan or grant and the ultimate beneficiary is a for-profit, some of the data submitted by the for-profit are classified pursuant to section 13.591. However, Ms. Coleman asked for the address of the ultimate beneficiary. The address is not classified as not public by section 13.591 and so is public pursuant to 13.03, subdivision 1.</p> <p>Further, the Commissioner disagrees with Mr. McCall that the address of an ultimate recipient of a loan or grant appropriately can be considered not public data as part of the customer list of a for-profit pass-through entity. <em>Merriam Webster's Collegiate Dictionary, Tenth Edition</em>, Merriam-Webster, Incorporated, 1996, defines customer as, one that purchases a commodity or service. Thus, the fact that the for-profit pass-through entity awards a grant or provides a loan to another for-profit entity, does not make the ultimate recipient a customer of the pass-through business.</p> <p>Based on the above discussion, it appears that data submitted by ultimate recipients who are individuals are public. The Commissioner notes, however, that certain of these data, other than names and addresses, may be classified as private pursuant to section 13.462, benefit data: Section 13.462, in relevant part, classifies data on individuals collected because the individual is or was an applicant for or a recipient of services provided under various housing, home ownership, and rehabilitation programs administered by government entities. Data submitted by ultimate recipients that are nonprofit organizations appear to be public. Data submitted by ultimate recipients that are for-profits appear either to be public or classified as not public pursuant to section 13.591.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Ms. Coleman raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Saint Paul did not comply with Minnesota Statutes, Chapter 13, in responding to a request to gain access to the addresses of those businesses and individuals who are the ultimate recipients of either loans or grants from the Neighborhood STAR program. The data are public pursuant to section 13.03, subdivision 1.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 29, 2004</p> <hr /> </td> </tr> </tbody> </table> </div>2678432666782666792666802022-01-19T19:25:52Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268009" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-29T16:14:43ZDid the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, regarding an August 30, 3004, request to inspect certain government data?November 29, 2004; Middle-Snake-Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On October 8, 2004, IPAD received a letter dated October 6, 2004, from Adrian Wesolowski. In his letter, Mr. Wesolowski asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Middle-Snake-Tamarac Rivers Watershed District (MSTRWD) maintains.</p> <p>In response to Mr. Wesolowski's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the MSTRWD Engineer. The purposes of this letter, dated October 11, 2004, were to inform him of Mr. Wesolowski's request and to ask him to provide information or support for MSTRWD's position. On November 2, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the MSTRWD.</p> <p>A summary of the facts as Mr. Wesolowski provided them is as follows. In a letter dated August 30, 2004, Mr. Wesolowski wrote to Mr. Adrian and asked to inspect the following data:</p> <p class="opinion_quote">1. Any documents or notes, including handwritten notes, which would show measurements and calculations for the cfs or fps or any other public data showing velocity, flowage or volume of water in the Snake River area taken at or in the vicinity of the bridge known as the Morkassel Bridge in McCrea Township on CSAH 34 during the years 1996 and 1997. Also any documents showing measurements and calculations for velocity, flowage, or volume of water which overtopped CSAH 34 within one mile in each direction of the Morkassel Bridge during the years 1996 and 1997.</p> <p class="opinion_quote">2. Any documents or notes, including handwritten notes or records showing the dates and exact times when water flow measurements were taken in the 1996 and 1997 time period at or near the above Morkassel Bridge or on CSAH 34 within in [sic] one mile north or south of the above Morkassel Bridge. 3. Any documents or notes which show the instruments used to measure the above cfs or fps showing the type of velocity meter used, whether the counter was manual or electronically metered, and whether or not sounding weights, and whether a sounding reel were used to make measurements for questions #1 and #2 above. Also, any documents showing whether or not a bridge board was used in obtaining measurements in questions #1 and #2.</p> <p class="opinion_quote">4. Receipts showing records of purchase for the equipment or documents showing how the above instruments (in question #3) were acquired by the MST Watershed District for use in taking measurements in questions #1 and #2 above.</p> <p class="opinion_quote">5. Any other public data in relation to water velocity or volume measurements during the years 1996 and 1997 at or near the above Morkassel Bridge.</p> <p class="opinion_quote">6. Any public data which would show what members of the MST Watershed staff took the above measurements in questions #1 and #2 above. Also, any public data which would show whether or not any one other than the MST Watershed District staff took velocity, flowage, or volume measurements at the locations and time periods outlined in questions #1 and #2 above.</p> <p>In his opinion request, Mr. Wesolowski wrote:</p> <p class="opinion_quote">My [August 30th, 2004, data practices request] was personally handed by myself to [the MSTRWD secretary] during regular business hours [on August 31]....After over a month, the MSTRWD has not provided access to documents nor has allowed any inspection of public data referred to in the above request to inspect data.</p> <hr /> <br /> <h2>Issue:</h2> <p>In Mr. Wesolowski's request for an opinion, he asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, regarding an August 30, 3004, request to inspect certain government data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comments to the Commissioner, Mr. Sobolik noted that Mr. Wesolowski has commenced litigation against the District relating to issues stemming from a flood control project.</p> <p>Mr. Sobolik wrote:</p> <p class="opinion_quote">...the District is a small public entity. The District office personnel consists of Ronald Adrian, who is the District Engineer and also must function as its Administrator. The District also employs a full-time secretary. The District also employs three (3) full-time technical personnel who primarily deal with survey work and monitoring of construction projects....As the Department is aware, Ronald J. Adrian is designated as the responsible authority for management of the data practices of the District....I provide this information...so that you are aware of the fact that Mr. Adrian is the only one responsible for complying with these data practices requests....</p> <p class="opinion_quote">[Mr. Wesolowski's request] came at a time when [he] knew that Mr. Adrian was not going to be in the office. [He] knows this because recently [he is] at every regular meeting of the District. Specifically, on the August 16, 2004, regular Board meeting, [Mr. Wesolowski was] present. At the close of the meeting, the schedule of Mr. Adrian was discussed. Mr. Adrian reported that for personal reasons he would be out of the office from August 26th through September 1st and from September 14th through September 21st....While Mr. Adrian was in the office from approximately September 2nd through September 13th, were four weekend days, one holiday, and a budget hearing set for September 9th...In addition, Mr. Adrian had to oversee the various projects that were in progress as well as do his other engineering and administrative functions. The timing of Mr. Wesolowski's request that underlies his request for an advisory opinion was received by the District after Mr. Adrian was on leave....Since the receipt of the Department's letter on October 13th, the District has simply been putting together their response to this advisory opinion as opposed to answering Mr. Wesolowski's request....</p> <p class="opinion_quote">[Mr. Wesolowski] has also been contacted with respect to the data underlying the request which is at issue in this opinion. To date, the District has not heard from Mr. Wesolowski.</p> <p>The Commissioner makes the following comments. First, there is no provision in Chapter 13 preventing an individual from requesting and gaining access to data merely because that person is involved in litigation with the government entity maintaining the requested data. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267580" title="95-012" target="_blank">95-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267779" title="96-038" target="_blank">96-038</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267700" title="97-005" target="_blank">97-005</a></p> <p>Second, there is no provision in Chapter 13 granting government entities more time to respond to a data request because the entity is short staffed. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/268014" title="03-030" target="_blank">Advisory Opinion 03-030</a>, the Commissioner wrote:</p> <p class="opinion_quote">Ms. Kepple stated that an immediate response was not possible, because the person handling yearbook requests was not available shortly after the District received X's request. Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.</p> <p>(See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267853" title="03-026" target="_blank">03-026</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/267227" title="03-031" target="_blank">03-031</a>.)</p> <p>It is well established that government entities are required to respond to data requests in a prompt and appropriate manner, and within a reasonable time. In his opinion request, Mr. Wesolowski states that he delivered his data request to the MSTRWD on August 31, 2004. The copy of the data request he submitted to the Commissioner has what appears to be a date stamp that reads, Received Aug 31 2004. Below the date stamp are the initials CK , which are the initials of the MSTRWD secretary. It appears, based on Mr. Sobolik's comments, that, as of November 2, 2004, nine weeks after having received Mr. Wesolowski's request, the MSTRWD still was putting together their response. In the Commissioner's opinion, this is not timely. If the MSTRWD has not yet responded to Mr. Wesolowski and (1) advised him the data do not exist; (2) advised him that the data are classified as not public; or (3) arranged a time for inspection; it should do so promptly.</p> <p>(The Commissioner notes the previous analysis is identical to those contained in Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/268010" title="04-073" target="_blank">04-073</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267497#/detail/appId/1/id/266771" title="04-074" target="_blank">04-074</a>, in which Mr. Wesolowski raised similar issues regarding separate data requests he made of the MSTRWD.)</p> <p>The Commissioner adds the following. In his comments, Mr. Sobolik questioned whether items 1, 2, 3, 5, and 6 of Mr. Wesolowski's data request are data practices requests. The Commissioner has reviewed these items and finds them to be requests for government data. Either the MSTRWD maintains these data or it does not. If not, it needs to so inform Mr. Wesolowski. If so, and the data are public, the MSTRWD promptly needs to provide Mr. Wesolowski with access.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Wesolowski raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Middle-Snake-Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in regard to an August 30, 2004, request to inspect certain data. <br /></td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 29, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2680092022-01-19T19:25:52Z266258266781266293266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267462" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-18T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of data related to a case in which a complaint is made against a licensed day care provider and no disciplinary, corrective or other enforcement action is taken against the licensee?November 18, 2004; Washington County36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 15, 2004, IPAD received a letter from Richard D. Hodsdon, Assistant Washington County Attorney. In this letter, Mr. Hodsdon asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the County. </p><p> In a letter dated October 1, 2004, IPAD wrote to Kevin Goodno, Commissioner of the Minnesota Department of Human Services (DHS), to invite him to submit comments. IPAD received Commissioner Goodno's comments on October 26, 2004. A summary of the facts of this matter follows. </p><p> In his opinion request, Mr. Hodsdon stated that he was seeking guidance and reconciliation of the provisions of Minn. Stat. section13.46, subd. 4 relative to a welfare licensing data and a licensing renewal memorandum dated March 18, 2004 issued by the Minnesota Department of Human Services in light of decisions of the Minnesota Supreme Court. </p><p> Mr. Hodsdon wrote: </p><p class="opinion_quote"> The Washington County Department of Community Services, acting as an agent of the State of Minnesota, licenses day care providers. That agency receives numerous inquiries on a daily basis over the telephone in which parents who seek to place their children in a licensed day care center ask for licensing data as defined by Minn. Stat. section13.46, subd 1. Of particular interest to those who make the inquiry is whether or not the licensee has been subject to any complaints or disciplinary action for violations of licensing standards. . . . </p><p> In relevant part, Minnesota Statutes, section 13.46, subdivision 4(b)(1), provides: </p><p class="opinion_quote"> Except as provided in paragraph (c), the following data on current and former licensees are public: name, address, telephone number of licensees, date of receipt of a completed application, dates of licensure, licensed capacity, type of client preferred, variances granted, type of dwelling, name and relationship of other family members, previous license history, class of license, and the existence and status of complaints. When a correction order or fine has been issued, a license is suspended, immediately suspended, revoked, denied, or made conditional, <u>or a complaint is resolved</u>, the following data on current and former licensees are public: the substance and investigative findings of the complaint, licensing violation, or substantiated maltreatment; the record of informal resolution of a licensing violation; orders of hearing; findings of fact; conclusions of law; specifications of the final correction order, fine, suspension, immediate suspension, revocation, denial, or conditional license contained in the record of licensing action; and the status of any appeal of these actions. [Emphasis added.] </p><p> Mr. Hodsdon wrote: </p><p class="opinion_quote"> The purpose of this request for an opinion is to seek guidance in situations in which a complaint is made and found to be classified as unsubstantiated or unable to determine and no disciplinary, corrective or other enforcement action is taken against the licensee. The historical practice of Washington County, based on wide-spread practice throughout the state and a memorandum of [DHS] dated March 18, 2004, . . . would allow the general allegations and nature of the substance of the complaint to be disclosed as public data, even when no disciplinary action was imposed and it was determined that there was no violation of any licensing standard. </p><p class="opinion_quote"> The Washington County Attorney's Office has advised Washington County Community Services that it is seriously concerned about the legal propriety of the position of the Commissioner of [DHS] in light of Minnesota Supreme Court and Appeals Court decisions interpreting provisions of Minn. Stat. section13.43, subd. [2(a)(4)], which classifies as private data 'the existence and status of any complaints or charges against the employee, regardless of whether or not the complaint or charge resulted in disciplinary action.' This statutory language appears to be very similar to the statutory language found in Minn. Stat. section 13.46, subd. 4(b)(1). The decision of the Minnesota Supreme Court in <i>Navarre v. South Washington County School District</i>, 652 N.W. 2d. 9 (Minn. 2002) appears to have given very narrow interpretation to the provisions of Minn. Stat. section13.43, subd. 2(4). In that decision the Minnesota Supreme Court held it to be a violation of the privacy rights of a public employee when the employer characterized allegations that were under investigation of an employee's conduct as 'very serious.' As cited by the Supreme Court in its decision, this opinion is based on a significant line of precedent that would seem to provide significant privacy rights to public sector employees when allegations of misconduct are made and do not result in disciplinary action. </p><p class="opinion_quote"> The Washington County Attorney's Office is concerned that Washington County Community Services in relying on the [DHS] memorandum, may be exposing itself to liability under the Minnesota Government Data Practices Act for violation of the privacy rights of certain licensees who are the subject of allegations of misconduct that are found to be unsubstantiated or unable to be proven. On the other hand, the Washington County Attorney's Office and the Washington County Department of Community Services also desire to assist parents in making an informed choice in a decision as to whether or not to place their child in a particular licensed day care facility. </p><p> In his comments to the Commissioner, Commissioner Goodno provided the following background information: </p><p class="opinion_quote"> Minnesota Statutes, Chapter 245A (Human Services Licensing Act), governs the licensure of programs and services by the Commissioner of [DHS.] Minnesota Statutes, section 245A.16, delegates to county human services agencies the authority and responsibility to perform certain functions with regard to the licensing of family child care services, including the investigation of complaints of alleged licensing violations. Counties also investigate allegations of maltreatment of children in family child care settings pursuant to Minn. Stat. section 626.556 (Reporting of Maltreatment of Minors Act). In fulfilling these responsibilities, county licensing agencies maintain a variety of licensing data on family child care licensees and applicants. </p><p class="opinion_quote"> The classification of welfare data is governed by Minn. Stat. section 13.46. The classification of data that is defined as licensing data is found in subdivision 4. This provision applies to DHS and the county licensing agencies in any disclosure by the governmental licensing agency of data defined as licensing data. </p><p> Additional substantial comments from Commissioner Goodno appear below. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Hodson asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of data related to a case in which a complaint is made against a licensed day care provider and no disciplinary, corrective or other enforcement action is taken against the licensee?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> As noted above, Minnesota Statutes, section 13.46, subdivision 4(b)(1), provides that, among other data, the existence and status of complaints against licensees are public. Additional data become public when a correction order or fine has been issued, a license is suspended, immediately suspended, revoked, denied, or made conditional, or a complaint is resolved. </p><p> Section 13.43 defines personnel data as data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity. As Mr. Hodsdon noted, pursuant to section 13.43, subdivision 2(a)(4), the existence and status of a complaint or charge against a public employee are public data, regardless whether the complaint or charge resulted in disciplinary action. Under subdivisions 2(a)(5) and 2(b), the specific reasons for, and data documenting the basis of, any disciplinary action, do not become public unless and until there is a final disposition of the disciplinary action. </p><p> Commissioner Goodno addressed Mr. Hodsdon's concerns: </p><p class="opinion_quote"> Minn. Stat. section 13.46, subd. 4(b)(1), explicitly states that, as the data relates to the licensee, the substance and investigative findings of a complaint are public when a disciplinary action has been issued or when a complaint is resolved. </p><p class="opinion_quote"> Under Minnesota Statutes, section 645.16, 'When the words of a law in their application to an existing situation are clear and free from ambiguity, the letter of the law shall not be disregarded . . . .' Minn. Stat. section 13.46, subd. 4(b)(1), clearly states that the substance and findings of a complaint are public data once the complaint is resolved. </p><p class="opinion_quote"> The meaning of the phrase 'complaint is resolved' is clear and has a common meaning. <i>The American Heritage Dictionary College Edition</i>, 1052 (2d. ed. 1982), defines the term 'resolve' as: 'To make a firm decision about; to cause to reach a decision.' Once DHS or a county licensing agency has concluded an investigation regarding an alleged violation of applicable law or rule, a determination is reached. An investigative determination includes a decision that the complaint is substantiated, unsubstantiated, or that the investigating agency was unable to determine whether any violation occurred. The determination, regardless of whether the complaint is substantiated or not, means that a decision has been made regarding the complaint: that is, the complaint is resolved. In situations in which the investigative findings result in a determination that violations did occur, licensing sanctions or disciplinary action may be issued. Of course, if the investigation results in a determination that the allegations that formed the basis for the complaint are unsubstantiated or the investigating agency is unable to determine whether any violation occurred, disciplinary action will not be issued. However, in each situation and regardless of whether disciplinary action is issued, a decision has been made regarding the complaint, and the complaint is resolved. </p><p class="opinion_quote"> Minn. Stat. section 13.46, subd. 4(b)(1), is clear that if a parent requests information about any complaints against a child care licensee, DHS or the county may provide the parent with public data on the licensee, including the substance and findings of a complaint once the complaint is resolved. Therefore, if a parent inquires about a licensee that was the subject of a complaint that was ultimately found to be unsubstantiated or the county was unable to determine whether any violations occurred, the county licensing agency must disclose the fact that there was a complaint and the substance and findings of that complaint. </p><p class="opinion_quote"> The legislative history of Minnesota Statutes, section 13.46, subdivision 4, reflects a clear intent to classify data regarding a licensing complaint that has been resolved as public data. </p><p class="opinion_quote"> The legislative intent is clear that information regarding the substance and investigative findings of a complaint may be disclosed not only when disciplinary action has been taken, <u>but once the complaint is resolved as well</u>. It is clear that disciplinary action need not be taken in order to disclose such information. The intent is made clear by the legislative history of and amendments to Minn. Stat. section 13.46, subd. 4. Prior to 2001, Minn. Stat. section 13.46, subd. 4(b)(1), stated: </p><p class="opinionquoteinquote"> When disciplinary action has been issued or the complaint is resolved, the following data are public: the substance of the complaint, the findings of the investigation of the complaint . . . . </p><p class="opinion_quote"> In 2001, the Legislature amended this provision in part, to draw out the distinction between the various types of 'disciplinary action' or licensing sanctions; i.e., correction order, fine, conditional license, suspension, immediate suspension, and revocation, and complaints that do not result in a licensing sanction, but for which a decision has been made and the complaint is resolved. These amendments were passed in the larger context of clarifying what data are public regarding applicants and substantiated maltreatment. While this provision was carefully considered and the subject of multiple legislative committee hearings, the language regarding the resolution of a complaint, specifically that the substance and findings of a complaint are public data once the complaint is resolved, was not changed. </p><p> Commissioner Goodno also provided an in-depth discussion regarding Mr. Hodsdon's remarks about the applicability of <i>Navarre</i> to the data in question. In summary, Commissioner Goodno stated: </p><p class="opinion_quote"> The Court held in <i>Navarre</i> that Washington County School District's statements went beyond identifying the existence and status of the complaints by identifying specific facts surrounding the complaints and describing the types of complaints while the complaint was under investigation and before there was a final disposition of any disciplinary action. The scope of <i>Navarre</i> is clearly limited to disclosures of personnel data during a personnel investigation and does not apply to the explicit language of Minn. Stat. section 13.46, subd. 4(b)(1), which classifies the substance and investigative findings of a licensing complaint as public data once the complaint is resolved. </p><p> Commissioner Goodno concluded: </p><p class="opinion_quote"> The March 18, 2004, memorandum issued by DHS to the county licensing agencies and referenced and enclosed by Washington County in its request for an opinion, is clear in its direction and consistent with the plain meaning of Minn. Stat. section 13.46, subd. 4(b)(1). In this memorandum, DHS specifically advises counties that the when a citizen contacts the county for information about complaints on a licensee, the county is to disclose the substance and findings of complaints, once a complaint is resolved. Examples provided by DHS include complaints in which the investigative disposition was substantiated, the county was unable to determine whether the alleged violations occurred, and violations were not determined. In each of these examples, a decision has been made regarding the complaint, meaning that the complaint has been resolved and therefore data regarding the substance and investigative findings of the complaint are public. </p><p class="opinion_quote"> In summary, the language of Minn. Stat. section 13.46, subd. 4(b)(1) explicitly states that the substance and investigative findings of a complaint when the complaint is resolved are public data. The provisions governing the disclosure of this data with respect to licensing data under Minn. Stat. section 13.46, subd. 4 and personnel data under section 13.43, subd. 2, differ significantly, and only section 13.46 governs the disclosure of licensing data. The decision by the Minnesota Supreme Court in Navarre pertained to the disclosure by a government entity of private personnel data during an investigation, not the disclosure of public licensing data after the investigation was completed and the complaint was resolved. Finally, the classification of the substance and investigative findings of a complaint that has been resolved as public data is consistent with and promotes the important public policy of assuring parents have the information necessary to make an informed choice about child care services. </p><p> The Commissioner agrees that the March 18, 2004, DHS memorandum to county licensing agencies is correct in stating that, once a complaint is resolved, the substance and findings of the complaint are public data. The Commissioner concurs that the phrase in section 13.46, subdivision 4(b)(1), or a complaint is resolved includes a decision that the complaint is substantiated, unsubstantiated, or that the investigating agency was unable to determine whether any violation occurred. The Commissioner agrees with DHS that in those situations, the complaint has been resolved and therefore data regarding the substance and investigative findings of the complaint are public. </p><p> The Commissioner acknowledges Mr. Hodsdon's concerns in light of <i>Navarre</i>. However, the Commissioner accepts Commissioner Goodno's explanation and reasoning that <i>Navarre</i> is not applicable to the data in question. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue raised by Mr. Hodson is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.46, subdivision 4(b)(1), data related to a case in which a complaint is made against a licensed day care provider and no disciplinary, corrective or other enforcement action is taken against the licensee are public. </td></tr></tbody></table><br /><p> Signed: </p><p> Dana B. Badgerow <br /> Commissioner </p><p class="date"> Dated: November 18, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2674622665162663532022-01-19T19:25:51Z266258266590266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266771" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-12T16:15:43ZDid the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data?November 12, 2004; Middle-Snake-Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 23, 2004, IPAD received a letter dated September 20, 2004, from Adrian Wesolowski. In the letter, Mr. Wesolowski asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Middle-Snake-Tamarac Rivers Watershed District (MSTRWD) maintains.</p> <p>In response to Mr. Wesolowski's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the MSTRWD Engineer. The purposes of this letter, dated September 24, 2004, were to inform him of Mr. Wesolowski's request and to ask him to provide information or support for the MSTRWD's position. On October 14, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the MSTRWD.</p> <p>A summary of the facts as Mr. Wesolowski provided them is as follows. In a letter dated August 25, 2004, Mr. Wesolowski wrote to Mr. Adrian and asked to inspect the following data:</p> <p class="opinion_quote">1. In 2003, approximately $145,000.00 was spent by the MST Watershed District for attorney's fees. I request the right to inspect any data which the Watershed District has which would show the source of those funds for the attorney's fees including but not limited to state and federal grant funds and local real estate tax revenue.</p> <p class="opinion_quote">2. In 2003, a number of checks from the U.S. Treasury were deposited by the Watershed District. I request the right to inspect copies of all checks from the U.S. Treasury deposited by the Watershed District for the year 2003.</p> <p class="opinion_quote">3. In 2003, there appears to be an expenditure by the Watershed District of $30.00 to Mr. David Bakke for a Sam's Club Membership. I request the right to inspect a copy of that membership with Sam's Club.</p> <p>In his opinion request, Mr. Wesolowski wrote:</p> <p class="opinion_quote">My August 25, 2004 letter of request was personally handed by myself to [the MSTRWD secretary] during regular business hours [on August 25]....After nearly a month, the MSTRWD has made no response of any kind to [my] request to inspect documents.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Wesolowski asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comments to the Commissioner, Mr. Sobolik noted that Mr. Wesolowski has commenced litigation against the District relating to issues stemming from a flood control project.</p> <p>Mr. Sobolik wrote:</p> <p class="opinion_quote">...the District is a small public entity. The District office personnel consists of Ronald Adrian, who is the District Engineer and also must function as its Administrator. The District also employs a full-time secretary. The District also employs three (3) full-time technical personnel who primarily deal with survey work and monitoring of construction projects....As the Department is aware, Ronald J. Adrian is designated as the responsible authority for management of the data practices of the District....I provide this information...so that you are aware of the fact that Mr. Adrian is the only one responsible for complying with these data practices requests....</p> <p class="opinion_quote">[Mr. Wesolowski's request] came at a time when [he] knew that Mr. Adrian was not going to be in the office. [He] knows this because recently [he is] at every regular meeting of the District. Specifically, on the August 16, 2004, regular Board meeting, [Mr. Wesolowski was] present. At the close of the meeting, the schedule of Mr. Adrian was discussed. Mr. Adrian reported that for personal reasons he would be out of the office from August 26th through September 1st and from September 14th through September 21st....While Mr. Adrian was in the office from approximately September 2nd through September 13th, were four weekend days, one holiday, and a budget hearing set for September 9th...In addition, Mr. Adrian had to oversee the various projects that were in progress as well as do his other engineering and administrative functions. The timing of Mr. Wesolowski's request that underlies his request for an advisory opinion was received by the District on the day before Mr. Adrian was scheduled to go on leave....Since the receipt of the Department's letter on September 28th, the District has simply been putting together their response as opposed to answering Mr. Wesolowski's request....</p> <p class="opinion_quote">Although I am not sure if it has any bearing on the Department's decision, the District will respond to Mr. Wesolowski's request and Mr. Wesolowski will have the ability to review any data the District has regarding his August 25th request which is at issue in this opinion.</p> <p>The Commissioner makes the following comments. First, there is no provision in Chapter 13 preventing an individual from requesting and gaining access to data merely because that person is involved in litigation with the government entity maintaining the requested data. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267580" title="95-012" target="_blank">95-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267779" title="96-038" target="_blank">96-038</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267700" title="97-005" target="_blank">97-005</a>.)</p> <p>Second, there is no provision in Chapter 13 granting government entities more time to respond to a data request because the entity is short staffed. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/268014" title="03-030" target="_blank">Advisory Opinion 03-030</a>, the Commissioner wrote:</p> <p class="opinion_quote">Ms. Kepple stated that an immediate response was not possible, because the person handling yearbook requests was not available shortly after the District received X's request. Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.</p> <p>(See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267853" title="03-026" target="_blank">03-026</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267227" title="03-031" target="_blank">03-031</a>.)</p> <p>It is well established that government entities are required to respond to data requests in a prompt and appropriate manner, and within a reasonable time. Mr. Wesolowski delivered his data request to the MSTRWD on August 25, 2004. It appears, based on Mr. Sobolik's comments, that, as of October 14, 2004, seven weeks after having received Mr. Wesolowski's request, the MSTRWD still was putting together their response. In the Commissioner's opinion, this is not timely. If the MSTRWD has not yet responded to Mr. Wesolowski and (1) advised him the data do not exist; (2) advised him that the data are classified as not public; or (3) arranged a time for inspection; it should do so promptly.</p> <p>(The Commissioner notes the previous analysis is identical to that contained in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/268010" title="04-073" target="_blank">Advisory Opinion 04-073</a>, in which Mr. Wesolowski raised a similar issue regarding a separate data request he made of the MSTRWD.)</p> <p>The Commissioner adds the following. In his comments, Mr. Sobolik questioned whether item number one of Mr. Wesolowski's request is a proper request. Mr. Sobolik wrote, Specifically, it is the position of the District and Mr. Wesolowski will be so notified, that question number 1 which asks for 'any data' is not a proper request in that it is so general that the reader cannot possibly know what is being requested. The Commissioner disagrees. The first item in Mr. Wesolowski's request is: In 2003, approximately $145,000.00 was spent by the MST Watershed District for attorney's fees. I request the right to inspect any data which the Watershed District has which would show the source of those funds for attorney's fees including but not limited to state and federal grant funds and local real estate tax revenue. Chapter 13 confers upon individuals the right to gain access to, i.e., inspect or obtain copies of, government data. Here, Mr. Wesolowski is asking to inspect any data that show or document the source of monies the MSTRWD spent on attorney's fees in 2003. Either the MSTRWD has such data or it doesn't.</p> <p>Finally, Mr. Sobolik stated the following regarding the second item of Mr. Wesolowski's request: I also draw attention to question number 2 of this request and ask whether this is a valid one or one which is frivolous. Clearly the District would not have cancelled checks from the U.S. Treasurer's Department. The second item Mr. Wesolowski asked to inspect is all checks from the U.S. Treasury deposited by the Watershed District for the year 2003. This is a data practices request and the MSTRWD is obliged to respond. If the MSTRWD does not maintain the data, it needs to so inform Mr. Wesolowski. <br /></p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Wesoloski raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Middle-Snake-Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 12, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2667712665912022-01-19T19:25:50Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268010" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-12T16:14:43ZDid the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data?November 12, 2004; Middle-Snake-Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 22, 2004, IPAD received a letter dated September 20, 2004, from Adrian Wesolowski. In the letter, Mr. Wesolowski asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Middle-Snake-Tamarac Rivers Watershed District (MSTRWD) maintains.</p> <p>In response to Mr. Wesolowski's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the MSTRWD Engineer. The purposes of this letter, dated September 24, 2004, were to inform him of Mr. Wesolowski's request and to ask him to provide information or support for MSTRWD's position. On October 14, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the MSTRWD.</p> <p>A summary of the facts as Mr. Wesolowski provided them is as follows. In a letter dated August 25, 2004, Mr. Wesolowski wrote to Mr. Adrian and asked to inspect the following data relating to the removal of a water main:</p> <p class="opinion_quote">1. Copy of the asbestos survey conducted by the MST Watershed District in the area of where the pipe will be removed or disturbed. <br /> 2. A copy of the notice given to the Minnesota Pollution Control Agency (MPCA). <br /> 3. A copy of the notice given to the Environmental Protection Agency (EPA). <br /> 4. A copy of any documentation which shows the analysis of the composition of the water line removed. <br /> 5. A copy showing the name of the licensed contractor who will remove the above waterline for the watershed district. <br /> 6. A copy of the deed restriction which will be placed on the property where the pipe is disturbed and removed. <br /> 7. Any other public data in relation to the removal of the above water main.</p> <p>In his opinion request, Mr. Wesolowski wrote:</p> <p class="opinion_quote">My August 25th, 2004 letter of request was personally handed by myself to [the MSTRWD secretary] during regular business hours [on August 25]....After nearly a month, the MSTRWD has made no response of any kind to [my] request to inspect documents.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Wesolowski asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comments to the Commissioner, Mr. Sobolik noted that Mr. Wesolowski has commenced litigation against the District relating to issues stemming from a flood control project.</p> <p>Mr. Sobolik wrote:</p> <p class="opinion_quote">...the District is a small public entity. The District office personnel consists of Ronald Adrian, who is the District Engineer and also must function as its Administrator. The District also employs a full-time secretary. The District also employs three (3) full-time technical personnel who primarily deal with survey work and monitoring of construction projects....As the Department is aware, Ronald J. Adrian is designated as the responsible authority for management of the data practices of the District....I provide this information...so that you are aware of the fact that Mr. Adrian is the only one responsible for complying with these data practices requests....</p> <p class="opinion_quote">[Mr. Wesolowski's request] came at a time when [he] knew that Mr. Adrian was not going to be in the office. [He] knows this because recently [he is] at every regular meeting of the District. Specifically, on the August 16, 2004, regular Board meeting, [Mr. Wesolowski was] present. At the close of the meeting, the schedule of Mr. Adrian was discussed. Mr. Adrian reported that for personal reasons he would be out of the office from August 26th through September 1st and from September 14th through September 21st....While Mr. Adrian was in the office from approximately September 2nd through September 13th, were four weekend days, one holiday, and a budget hearing set for September 9th...In addition, Mr. Adrian had to oversee the various projects that were in progress as well as do his other engineering and administrative functions. The timing of Mr. Wesolowski's request that underlies his request for an advisory opinion was received by the District on the day before Mr. Adrian was scheduled to go on leave....Since the receipt of the Department's letter on September 28th, the District has simply been putting together their response as opposed to answering Mr. Wesolowski's request....</p> <p class="opinion_quote">Although I am not sure if it has any bearing on the Department's decision, the District will respond to Mr. Wesolowski's request and Mr. Wesolowski will have the ability to review any data the District has regarding his August 25th request which is at issue in this opinion.</p> <p>The Commissioner makes the following comments. First, there is no provision in Chapter 13 preventing an individual from requesting and gaining access to data merely because that person is involved in litigation with the government entity maintaining the requested data. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267580" title="95-012" target="_blank">95-012</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267779" title="96-038" target="_blank">96-038</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267700" title="97-005" target="_blank">97-005</a>.)</p> <p>Second, there is no provision in Chapter 13 granting government entities more time to respond to a data request because the entity is short staffed. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/268014" title="03-030" target="_blank">Advisory Opinion 03-030</a>, the Commissioner wrote:</p> <p class="opinion_quote">Ms. Kepple stated that an immediate response was not possible, because the person handling yearbook requests was not available shortly after the District received X's request. Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.</p> <p>(See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267853" title="03-026" target="_blank">03-026</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267227" title="03-031" target="_blank">03-031</a>.)</p> <p>It is well established that government entities are required to respond to data requests in a prompt and appropriate manner, and within a reasonable time. Mr. Wesolowski delivered his data request to the MSTRWD on August 25, 2004. It appears, based on Mr. Sobolik's comments, that, as of October 14, 2004, seven weeks after having received Mr. Wesolowski's request, the MSTRWD still was putting together their response. In the Commissioner's opinion, this is not timely. If the MSTRWD has not yet responded to Mr. Wesolowski and (1) advised him the data do not exist; (2) advised him that the data are classified as not public; or (3) arranged a time for inspection; it should do so promptly.</p> <p>The Commissioner adds the following. In his comments, Mr. Sobolik questioned whether item number seven of Mr. Wesolowski's request is in fact a valid request for data under Minnesota Statute Chapter 13. The seventh item Mr. Wesolowski requested is: Pursuant to the Minnesota Data Practices Act I request to inspect the following public data...Any other public data in relation to the removal of the above water main. Chapter 13 confers upon individuals the right to gain access to (inspect or obtain copies of) government data. Here, it appears that Mr. Wesolowski has asked to inspect any additional data that the MSTWRD maintains relating to the water main, beyond those specified in items number one through six. Either the MSTRWD has additional public data or it does not. The Commissioner views this as a valid data practices request.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Wesolowski raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Middle-Snake-Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 12, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2680102022-01-19T19:25:49Z266258266262266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267629" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-03T16:15:43ZIs the Minnesota Department of Corrections in compliance with Minnesota Statutes, Chapter 13, in charging $177.22 for a copy of jail booking data from the Statewide Supervision System for the time period November 1, 2003, through July 31, 2004?November 3, 2004; Minnesota Department of Corrections36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 15, 2004, IPAD received a letter dated September 14, 2004, from Janet Roberts of the <em>Saint Paul Pioneer Press</em>. In her letter, Ms. Roberts asked the Commissioner to issue an advisory opinion regarding whether the Minnesota Department of Corrections had charged an appropriate rate for a copy of certain public government data.</p> <p>In response to Ms. Roberts' request, IPAD, on behalf of the Commissioner, wrote to Joan Fabian, Commissioner of the Department. The purposes of this letter, dated September 21, 2004, were to inform her of Ms. Roberts' request and to ask her to provide information or support for Department's position. On October 6, 2004, IPAD received a response, dated October 5, 2004, from Commissioner Fabian.</p> <p>A summary of the facts as Ms. Roberts provided them is as follows. In a letter dated July 30, 2004, Ms. Roberts wrote to the Department:</p> <p class="opinion_quote">I...request a copy of statewide jail bookings from the Department of Corrections Statewide Supervision System. I would like all bookings from Nov. 1, 2003, through July 31, 2004.</p> <p class="opinion_quote">I would like the data in the same fixed-width, plain-text format you provided last year and I am enclosing a copy of the file layout so you can see exactly what we received. I can take the data on CD-ROM or by FTP, whichever is easiest for [Department] staff.</p> <p class="opinion_quote">In response to the data request we submitted last year, [your technology staff] set up a BCP bulk-export routine to copy the data from your SQL Server database to plain text files. His plan was to save that routine to re-run each time we request the data. As a result, we anticipate your actual cost for creating the extract will be minimal.</p> <p>Department staff responded in an August 6, 2004, email:</p> <p class="opinion_quote">...While our developers have created the BCP bulk-export routine you referenced, the cost for this process was reflected in a letter to you dated November 17, 2003 [from Department staff].</p> <p class="opinion_quote">In that letter, the cost was itemized for providing booking data as <br /> 6 hours x 33/hour (salaries and server resources) $198 <br /> Disk $2</p> <p class="opinion_quote">Total cost $200</p> <p class="opinion_quote">As we discussed at that time, this cost reflects the ongoing costs for providing you with the public jail booking data....</p> <p>Ms. Roberts wrote back in an email dated August 6, 2004:</p> <p class="opinion_quote">[In November 2003] the Pioneer Press agreed to pay the $200 because it was the first time we had requested a copy of records from your new Statewide Supervision System and, as such, your IT staff had to write a BCP bulk-export routine to copy the data from the SQL Server. Since that work was done last year - and, as you acknowledge, the export routine already exists - we do not believe it is part of the actual cost of copying the data for my new request. In effect, you appear to be doubling billing for that work.</p> <p>Department staff responded in an email dated August 19, 2004. Attached to that email was an email of the same date from Randy Hartnett, the Department's Data Practices Compliance Official. Mr. Hartnett wrote:</p> <p class="opinion_quote">...Ms. Roberts stated her belief that the $200.00 charged the Pioneer Press for the data release last year included the cost of developing the bulk export routine from SQL. This is not the case.</p> <p class="opinion_quote">While our IT department did indeed need to develop the routine to perform this transfer, according to their records, this project required in excess of 140 hours of staff time....on the basis that this project had the effect, in part, of separating the private from the public information in the database, my advice was that the charge made to the Pioneer Press last year should include only the cost of producing a copy of the data from the [Statewide Supervision System] database using that routine.</p> <p class="opinion_quote">The breakdown of those costs, according to IT people is as follows:</p> <table align="center" border="2"> <tbody> <tr> <td> <h2>Task</h2> </td> <td> <h2>Minutes</h2> </td> <td> <h2>Fee</h2> </td> </tr> <tr> <td>Project Mgr reviews and routes the request (salary and benefits)</td> <td>15</td> <td>$12.38</td> </tr> <tr> <td>Info. Tech Specialist (ITS) 4 administers request</td> <td>15</td> <td>$10.40</td> </tr> <tr> <td>ITS 3 modified extract for data range</td> <td>30</td> <td>$19.50</td> </tr> <tr> <td>ITS 3 executes DTS package</td> <td>15</td> <td>$9.75</td> </tr> <tr> <td>Server processes DTS package</td> <td>120 - 180</td> <td>$40.00</td> </tr> <tr> <td>ITS 3 verifies files to determine if size appropriate</td> <td>15</td> <td>$9.75</td> </tr> <tr> <td>ITS 4 verifies files to determine if data appropriate</td> <td>15</td> <td>$12.38</td> </tr> <tr> <td>ITS 4 makes data changes as required</td> <td>30</td> <td>$20.80</td> </tr> <tr> <td>Project Mgr reviews for required changes</td> <td>30</td> <td>$24.75</td> </tr> <tr> <td>ITS 3 burns CD</td> <td>45</td> <td>$39.00</td> </tr> <tr> <td>CD cost</td> <td /> <td>$2.00</td> </tr> <tr> <td> <h2>Total</h2> </td> <td>5.5 - 6.5 hours</td> <td>$200.71</td> </tr> </tbody> </table> <br /> <p>Ms. Roberts and Department staff exchanged additional emails related to the $200 fee. The Department agreed to reduce the labor part of the fee estimate by $22.78, for a new total of $177.22. (The Commissioner assumes the Department removed the first and second charges, relating to reviewing, routing, and administering the request.)</p> <p>In her opinion request, Ms. Roberts raised the following specific objections to the Department's fee: the labor costs are inconsistent; there are charges related to ensuring integrity of the data; Chapter 13 requires that entities make data easily accessible; and the charge includes time spent for a computer specialist to watch a CD burn.</p> <hr /> <br /> <h2>Issue:</h2> <p>In Ms. Roberts' request for an opinion, she asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Is the Minnesota Department of Corrections in compliance with Minnesota Statutes, Chapter 13, in charging $177.22 for a copy of jail booking data from the Statewide Supervision System for the time period November 1, 2003, through July 31, 2004?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).)</p> <p>In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data.</p> <p>Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>In her comments to the Commissioner of Administration, Commissioner Fabian discussed Ms. Roberts' concerns, but provided little explanation as to how the Department's charge represents the actual cost of making a copy of the jail booking data. It should be noted, however, that Commissioner Fabian agreed to further reduce the copy fee by $11.73, in response to Ms. Roberts' question about inconsistent labor charges.</p> <p>The Commissioner of Administration makes the following comments regarding the Department's fee. First, it would not have been appropriate for the Department to include in its copy charge a fee for staff time to review, route, and administer the data request. See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267813" title="97-013" target="_blank">97-013</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267827" title="04-003" target="_blank">04-003</a>. (It appears these parts of the charge were removed prior to Ms. Roberts making her opinion request.)</p> <p>Second, it is not appropriate for the Department to charge for time spent verifying the accuracy of the data. As the Commissioner stated in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267785" title="04-042" target="_blank">Advisory Opinion 04-042</a>:</p> <p class="opinion_quote">In addition, the fax fee included in the cost for the Sheriff's assistant to contact a state agency to verify the accuracy of its data. That charge is not allowable. Implicit in the requirements of Chapter 13, and section 15.17 [the Official Records Act] is that government entities must maintain accurate data.</p> <p>Third, the Commissioner questions the appropriateness of the $16 per hour (for two to three hours) charged for the server to process the DTS package. Commissioner Fabian argues that these are special costs as allowed by language in Minnesota Rules, section 1205.0300, subpart 4. The language in subpart 4 provides a list of costs intended to guide government entities in arriving at a reasonable fee for providing copies. Commissioner Fabian refers to clause (D), which states, [The entity shall be guided by] any special costs necessary to produce such copies from machine based record keeping systems, including but not limited to computers and microfilm systems. Commissioner Fabian wrote:</p> <p class="opinion_quote">In the case of the SSS system, there are clear machine-based special costs. Because the system contains such a large volume of data comprised in part of the booking and detention records of the booking entities, in many cases over several decades, the system requires substantial server resources. The special costs associated with running the request by the Pioneer Press is simply the cost associated with the inability to do other work while it is being run....With a server such as the one used for the SSS system, however, when it is being used to retrieve and compile the data to comply with the request, it cannot be used for the other purposes demanded of it.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267813" title="97-013" target="_blank">Advisory Opinion 97-013</a>, the Commissioner briefly discussed this same provision:</p> <p class="opinion_quote">...However, the rationale behind the special costs language is that it is reasonable for government agencies to recover, as part of their copy charges, any special costs associated with making copies of data from a machine-based, i.e., computer, record keeping system. Special costs might include writing or modifying a computer program to format data.</p> <p class="opinion_quote">In this case, Secretary Growe has not provided information sufficient enough to clearly show that special costs are involved in the copying of the voter registration tapes. The fact that the copying entity is a computer rather than a copying machine is not, in itself, sufficient.</p> <p>Thus, it is the Commissioner's opinion that it is not appropriate for the Department to charge server time to the <em>Pioneer Press</em>. First, it does not appear to be a type of special cost which the Department can charge to a data requestor. Second, the Department's argument appears similar to one with which the Commissioner consistently has not agreed, i.e., government entities charging for electricity used to run a copy machine, and for wear and tear on a machine. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267741" title="94-059" target="_blank">Advisory Opinion 94-059,</a> the Commissioner wrote:</p> <p class="opinion_quote">Presumably Rosemount must operate and maintain copy machines for its internal operations. Rosemount did not submit information to the Commissioner which indicates that it must operate and maintain machines other than those necessary for its internal operations in order to provide members of the public with copies of public data. It is not reasonable for government entities to recover a portion of their normal operating expenses by charging a copying fee which is higher than the actual cost to supply the copy. (See also Commissioner's <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267402" title="94-040" target="_blank">Advisory Opinion #94-040</a>.)</p> <p>(See also Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267403" title="04-040" target="_blank">04-040</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267508#/detail/appId/1/id/267598" title="01-066" target="_blank">01-066</a>.)</p> <p>Similarly, it is the Commissioner's opinion that because the server housing the Statewide Supervision System serves a function that is part of the Department's everyday operations, it is not appropriate to include in the copy fee a charge for portions of its time.</p> <p>Fourth, the Commissioner questions the Department's charge of 45 minutes for an ITS 3 to burn (copy the data to) the CD. In her comments, Commissioner Fabian wrote:</p> <p class="opinion_quote">...According to the IT personnel who do this task, creating the CD delivered to the Pioneer Press is not like the simple copying of a data CD in which a staff member sets the CD in the drive and comes back to it when the process is complete. The ITS 3 needs to monitor the process and input instructions to ensure the finished copy contains the data requested....[t]he ITS 4 who supervises the process notes: These are large files that we are transferring to CD/DVD, and require PC system resources to run effectively. Other Developer tools, Visual Studio and SQL Query Analyzer, also require significant resources. We need to be careful not to create a resource conflict. ... Failure to monitor the process could result in the need to re-do the task, resulting in substantial lost time and effort.</p> <p>Given the comments of the IT staff, it seems that this step in the process is more than simply copying the data to the CD. It appears to represent part of the searching for and retrieving component of the charge. In addition, it is not clear if part of the charge represents the actions taken by the Department to ensure that private, inaccurate, or incomplete data from the Statewide Supervision System database are not released to the requestor. As stated in section 13.03, subdivision 3(c), the Department may not charge for separating public from not public data. The Commissioner encourages the Department to revisit this part of the fee.</p> <p>Finally, as to the other components of the copy charge, the Commissioner does not have enough information to determine whether they represent the actual costs of either searching for and retrieving the data or making the copy.</p> <p>Thus, because the Commissioner finds some of the copy charge components inappropriate and cannot determine the appropriateness of others, she is unable to state, with certainty, whether the Department's overall charge of $165.49 (reduced from $177.22) is allowable pursuant to Chapter 13.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised that Ms. Roberts raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The Commissioner cannot determine, with certainty, whether the Minnesota Department of Corrections is in compliance with Minnesota Statutes, Chapter 13, in charging $165.49 (reduced from $177.22) for a copy of jail booking data from the Statewide Supervision System for the time period November 1, 2003, through July 31, 2004.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 3, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2676292665302663062669392668742022-01-19T19:25:49Z266258515651266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267102" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-11-03T16:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Joint Underwriting Association maintains: the names and addresses of its policyholders?November 3, 2004; Minnesota Joint Underwriting Association36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <p><strong>Note: In 2015, the Minnesota Supreme Court held in <em>Minnesota Joint Underwriting Association v. Star Tribune</em> that MJUA is not a government entity, which supersedes the discussion portion of this opinion.</strong></p> <h2>Facts and Procedural History:</h2> <p>On September 14, 2004, IPAD received a letter dated September 13, 2004, from John Bjorkman. In the letter, Mr. Bjorkman asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the Minnesota Joint Underwriting Association (MJUA) maintains. In a letter dated September 21, 2004, IPAD sought comments from the Minnesota Department of Commerce. Donna Watz, Staff Attorney, provided comments in a letter dated September 28, 2004.</p> <p>A summary of the facts as Mr. Bjorkman presented them is as follows. He wrote:</p> <p class="opinion_quote">...the MJUA has been asked to disclose the names and addresses of its policyholders by an insurance agent who intends to solicit those policyholders. The MJUA has declined to release the information pending receipt of an advisory opinion from the Commissioner.</p> <p class="opinion_quote">By way of background, the MJUA is a statutorily created entity authorized to issue insurance to entities and individuals unable to obtain insurance in the private marketplace. See Minn. section 62I.02. The MJUA is considered a state agency within the purview of [Chapter 13]. The MJUA is also, in our view, considered an insurer or insurance company as those terms are used in various state and federal privacy provisions. Indeed, the MJUA is regulated by the Department of Commerce in the same manner as any other insurance company. For instance, the MJUA is required to file an Annual Statement, the Commissioner approves all of the MJUA's rates and the Commissioner has the right to inspect MJUA's books. Perhaps, most tellingly, the MJUA is required to pay premium taxes to the State just like any other insurer.</p> <p class="opinion_quote">State and federal law prohibits an insurer or insurance company from disclosing private information concerning its policyholders....</p> <p class="opinion_quote">Under federal law, the Gramm-Leach-Bliley Act prohibits an insurer from disclosing private policyholder information....</p> <p class="opinion_quote">In 1996 the Commissioner provided the MJUA with an <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704#/detail/appId/1/id/267107" title="96-005" target="_blank">Advisory Opinion 96-005</a>, on the very issue raised by this request. The opinion found the MJUA was subject to [Chapter 13] and that all information gathered by the MJUA is public unless otherwise classified in statute, federal law or by temporary classification. The advisory opinion ultimately concluded that the MJUA was required to disclose the names and addresses of its policyholders because the Commissioner is not aware of any other Minnesota statute or federal law which would classify the data in question as private or non-public. The MJUA questions the continuing applicability of the 1996 advisory opinion for two reasons. First, the advisory opinion does not reference Minn. Stat. section 72A.502 and the MJUA is concerned the Commissioner may not have considered that statute. Second, the Gramm-Leach-Bliley Act was not enacted until well after the Commissioner's 1996 advisory opinion and we believe the Act may impact the opinion.</p> <hr /> <br /> <h2>Issue:</h2> <p>In Mr. Bjorkman's request for an opinion, he asked the Commissioner to address the following issue:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Joint Underwriting Association maintains: the names and addresses of its policyholders?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704#/detail/appId/1/id/267107" title="96-005" target="_blank">Advisory Opinion 96-005</a>, the Commissioner took the position that the MJUA is a state agency for purposes of Minnesota Statutes, Chapter 13. The Commissioner wrote:</p> <p class="opinion_quote">...Section 13.02, subdivision 17, defines state agency as the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district, or agency of the state. Given the [MJUA] is an association created by Minnesota statute, it is the Commissioner's position that the [MJUA] is a state agency, for purposes of Chapter 13, and is, therefore, subject to the requirements of Chapter 13.</p> <p class="opinion_quote">All data subject to Chapter 13 are presumed to be public unless those data are otherwise classified in statute, in federal law, or by a temporary classification....</p> <p class="opinion_quote">Therefore, because the data relating to Dram Shop liquor liability insureds do not appear to be classified as anything other than public, those data are public by operation of...Section 13.03, subdivision 1.</p> <p>In his opinion request, Mr. Bjorkman noted that both state statute and federal law appear to prohibit the MJUA, a state agency, from disseminating certain data. Pursuant to Minnesota Statutes, section 72A. 502, subdivision 1, An insurer...must not disclose any personal or privileged information about a person collected or received in connection with an insurance transaction without the written authorization of that person except as authorized by this section. Section 72A.491, subdivision 14, defines insurer as any insurance company... Section 60A.02, subdivision 4, states that insurance company includes every insurer, corporation, business trust, or association engaged in insurance as principal.</p> <p>Further, the privacy provisions of the Gramm-Leach-Bliley Act state, It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information. (See 15 U.S.C. section 6801.) The Gramm-Leach-Bliley Act defines financial institutions to include insurers. (See 12 U.S.C. section 1843(k)(4) and 15 U.S.C. section 6809.)</p> <p>As stated above, section 13.03, subdivision 1, provides that government data are public unless otherwise classified in statute, federal law, or by temporary classification (not relevant here).</p> <p>Although neither the language in Chapter 72A nor federal law provides an explicit classification of data, i.e., private, it appears to operate as the functional equivalent. Therefore, in the Commissioner's opinion, the MJUA is prohibited from disclosing the names and addresses of certain of its policyholders without consent. (See below for a discussion of the difference in the treatment of data about individual policyholders and other types of policy holders, e.g., corporations, partnerships, etc.) However, the Commissioner urges the MJUA to seek change to its enabling legislation, Chapter 62I, so that its policyholder data specifically are classified as private. This would remove any question about whether its policyholders are entitled to other rights of subjects of private data, such as the right to receive a Tennessen warning notice (see section 13.04, subdivision 2.)</p> <p>Finally, the Commissioner adds the following. Ms. Watz, on behalf of the Commerce Department wrote:</p> <p class="opinion_quote">The Department agrees with the conclusions reached by Mr. Bjorkman...We concur that Minn. Stat. section72A.502 and the Gramm-Leach-Bliley Act should prohibit the [MJUA] from disclosing personal information about its individual policyholders without the approval of the policyholder. As a point of clarification, we note that Minn. Stat. section72A.502 and the Gramm-Leach-Bliley Act pertain to personal information on individuals and do not address the privacy classification for information about companies or other entities that are policyholders....</p> <p>The Commissioner agrees. In state law, section 72A.491, subdivision 17, defines personal information as any individually identifiable information gathered in connection with an insurance transaction from which judgments can be made about an individual's character, habits, avocations, finances, occupation, general reputation, credit, health, or any other personal characteristics. In federal law, 15 U.S.C. section 6809 (4), defines nonpublic personal information as that provided by a consumer to a financial institution. Further, 15 U.S.C. section 6809 (9) defines consumer as an individual who obtains...financial products or services which are to be used primarily for personal, family, or household purposes... Therefore, the names and addresses of MJUA's policyholders who are individuals cannot be released without consent, but the names and addresses of other types of policyholders are public pursuant to section 13.03, subdivision 1.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Bjorkman raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapters 13 and 72A, and federal law, the Minnesota Joint Underwriting Association is prohibited from releasing, without consent, the names and addresses of its policyholders who are individuals.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana B. Badgerow <br /> Commissioner</p> <p class="date">Dated: November 3, 2004</p> <hr /></td> </tr> </tbody> </table> </div>2671022671012022-01-20T16:26:30Z266258266271266262266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267820" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-29T15:14:43ZDid Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data? Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for "all data used in calculating the fee, including a breakdown of all component costs?"October 29, 2004; Hennepin County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 9, 2004, IPAD received a letter dated September 8, 2004, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data about his/her child that Hennepin County maintains.</p> <p>In response to X's request, IPAD, on behalf of the Commissioner, wrote to Daniel Engstrom, Assistant Administrator, Hennepin County Human Services. The purposes of this letter, dated September 16, 2004, were to inform him of X's request and to ask him to provide information or support for the County's position. On October 6, 2004, IPAD received a response, dated same, from Arthur Katzman, Senior Assistant County Attorney.</p> <p>A summary of the facts as X provided them is as follows. In a letter dated June 23, 2004, X wrote to Mr. Engstrom:</p> <p class="opinion_quote">I am writing to obtain copies of all data related to my [child] which is maintained by Hennepin County Developmental Disabilities and which corresponds to each of the ten requests below. I am requesting: <br /> 2) Telephone logs <br /> 3) Communications logs <br /> 4) Meeting notes, observation notes, etc. <br /> 5) Emails <br /> 6) Memoranda, correspondence <br /> 7) Reports <br /> 8) Invoices, billings, claims <br /> 9) Intake documents <br /> 10) All other data not contained in requests 1-9.</p> <p>X wrote again to Mr. Engstrom on July 27, 2000. In part, X stated, To date, I have had but one phone contact from my [child's] worker...and she faxed me a copy of a [sic] Hennepin County's Data Practices Policy. X also wrote, Depending upon whether there are any charges involved I may come inspect them at your location and order individual copies...</p> <p>The social worker wrote back in a letter dated August 11, 2004:</p> <p class="opinion_quote">On June 23rd Hennepin County received your request for data on your [child]. On July 6th we had a telephone conversation regarding this request. On that date I also faxed to you a copy policy regarding fees for data. I did not hear back from you regarding how you wanted to proceed.</p> <p class="opinion_quote">On July 24th we received your request for data related to your [child]. On August 2nd I left you two telephone messages as I hoped to clarify how you wished to proceed to review [your child's] case record and other requested information. I have not had any response to date.</p> <p class="opinion_quote">The cost of copies is 25 cents per page as indicated on my July 6th fax to you. You are welcome to come and review [your child's] records here at the [County] and determine what documentation you would like to have copied.</p> <p>In a letter dated August 13, 2004, X wrote to Mr. Engstrom. X wrote:</p> <p class="opinion_quote">On 7/27/04 I sent you a letter indicating that I had not received any response to my request except a telephone call from my [child's] worker...</p> <p class="opinion_quote">On 8/2/04 [the social worker] called again and left a message on my answering machine.</p> <p class="opinion_quote">I am requesting that all further communications related to servicing this request be conveyed to me in writing unless I specify otherwise.</p> <p class="opinion_quote">I am requesting that you immediately gather my [child's] records and inform me as to whether or not there will be a fee for the copies of the records....</p> <p>If there will be a fee then I request that you provide me the fee and a copy of all data used in calculating the fee, including a breakdown of all component costs. I would consider a per page charge of 25 cents to be unreasonable and not reflective of actual costs....</p> <hr /> <br /> <h2>Issues:</h2> <p>In X's request for an opinion, s/he asked the Commissioner to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data?</li> <li>Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p><em><strong>Issue 1:</strong> Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data?</em></p> <p>When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her child.</p> <p>In his comments to the Commissioner, Mr. Katzman wrote:</p> <p class="opinion_quote">[X] sent [X's] initial data request to Daniel Engstrom on June 23, 2004....On July 6, 2004 (the eighth business day after [X's] request), Ms. Wolf called [X] and spoke with [X] regarding [X's] request, as well as advising [X] that there would be a charge for the data. In connection with the charge, she faxed [X] Hennepin County's policy regarding charges. Ms. Wolf's understanding was that [X] would get back to her as to how [X] wanted her to handle the data request, in light of the fact that there would be charges involved....</p> <p class="opinion_quote">[X] never responded to Ms. Wolf. Instead, [X] wrote to Mr. Engstrom a second time on July 27, 2004, saying, Since {the July 6 phone call and fax from Ms. Wolf} I have not received any communications regarding the fulfillment of my requests. My clients would respectfully submit that the responsibility shifted to [X] to get back to Ms. Wolf...to tell her how [X] wanted her to proceed....In fact, [X] had already been told by Ms. Wolf that there would be charges for copies, and what is more, she provided [X] with the county's policy regarding those charges and what the per page amount would be....</p> <p class="opinion_quote">Ms. Wolf again responded in a timely fashion by calling [X] on August 2nd, and left [X] telephone messages to clarify how [X] wished to proceed to review [X's child's] case record and other requested information. (See Ruth Wolf's letter of August 11, 2004). Again, she received no written or oral response from [X]. In a further attempt to comply with [X's] request, Ms. Wolf wrote to [X] on August 11, 2004....Again, instead of contacting Ms. Wolf, [X] again wrote to Mr. Engstrom on Aug. 13, 2004. Once again, [X] acknowledges that On 8/2/04 Ms. Wolf called again and left a message on my answering machine. But rather than call her back and arrange to inspect the records consistent with [X's] earlier suggestion in [X's] July 27 letter, [X] inexplicably wrote to Mr. Engstrom again on August 13, 2004.</p> <p class="opinion_quote">Ms. Wolf made further attempts to comply with [X's] data request. On August 18, she again left a message on [X's] answering machine regarding [X's] request to review [X's] child's file. [X] failed to return her call or otherwise respond. On August 23, 2004, Ms. Wolf contacted [X] and let [X] know that [X's child's] file was available for review. [X] again chose not to review it. [X] acknowledges this call in [X's] letter to you dated Sept. 8....</p> <p>X requested copies of data in a letter dated June 23, 2004. Pursuant to section 13.04, subdivision 3, the County was obligated to respond within ten business days. Here, because X requested copies and the County's policy states that, generally, it collects fees up front, communication between the parties needed to occur prior to X receiving the data. There is no dispute that Ms. Wolf spoke with X by telephone on the eighth business day and faxed X a copy of the County's policy on <em>Copy and Data Fees</em>.</p> <p>However, from that point on, the Commissioner cannot determine whether it was the County or X who did not follow through to ensure that X received copies of the data s/he requested. According to Mr. Katzman, Ms. Wolf understood that X would get back to her to as to how [X] wanted her to handle the data request. X's July 27, 2004, letter suggests that, perhaps, X was expecting additional communications regarding the fulfillment of [X's] requests. If X does not yet have copies of the data s/he requested in June 2004, the Commissioner urges both parties to work to resolve the matter promptly.</p> <p><em><strong>Issue 2:</strong> Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In his comment to the Commissioner, Mr. Katzman wrote, Ms. Wolf had not received [X's August 13, 2004, letter] and, while I have no doubt that [X] sent it, my clients could find no record of having received it. Thus, my clients have not responded to it. Accordingly, we will respond at this time.</p> <p>Mr. Katzman attached a copy of a memo from the county's senior program analyst, who originally did the research and study on how that per page cost should be determined. It clearly breaks down the component costs. Mr. Katzman stated that a copy of the memo was being provided to X.</p> <p>The Commissioner has the following comments. First, she is puzzled by Mr. Katzman's assertion that the County did not receive the August 13, 2004, letter. Mr. Katzman referred to the letter in his comments regarding Issue 1 and made no mention of the County not having received the letter. Then, in regard to Issue 2, Mr. Katzman states that the letter was not received. Either the County did or did not receive the letter, but the Commissioner cannot make a certain determination. If the County did receive the letter, it did not respond in a timely manner. If the County did not receive the letter, it had no obligation to respond.</p> <p>Second, X asked to be provided with the fee and a copy of all data used in calculating the fee, including a breakdown of all component costs. It is the perspective of the Commissioner that, while the County's memo represents a breakdown of the copy fee, it is not clear if it represents all data used in calculating the fee. The Commissioner reminds her readers that pursuant to Minnesota Statutes, section 15.17, subdivision 1, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13. If the County created and compiled detailed data in determining its copy charge, e.g., an analysis of the costs of all materials, labor/fringe benefits, and equipment usage, those data likely are official records and, based on X's request, should be made available to X, if they exist.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that X raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Commissioner cannot determine whether Hennepin County complied with Minnesota Statutes, Chapter 13, in its response to a June 23, 2004, request for copies of data.</li> <li>The Commissioner has no basis upon which to conclude, with certainty, whether Hennepin County complied with Minnesota Statutes, Chapter 13, in its response to an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs. <br /></li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Dana Badgerow <br /> Commissioner</p> <p class="date">Dated: October 29, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678202665372664072665152025-12-03T22:23:12Z266258266301266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266412" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-28T15:14:43ZPursuant to Minnesota Statutes, Chapter 13, what is the classification of active criminal investigative data under section 13.82, subdivision 7, to which the requestor, a member of the public, previously was granted access?October 28, 2004; Lake County36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On October 11, 2004, IPAD received a letter from Russ Conrow, County Attorney for Lake County, in which he asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the County. A summary of the facts of this matter follows. </p><p> Mr. Conrow asked the Commissioner to address the classification of certain criminal investigative material maintained by the Lake County Sheriff's Office. According to Mr. Conrow: </p><p class="opinion_quote"> The material concerns the disappearance of [an] individual on May 12, 1985. The material gives the investigative file of the sheriff's department from that time period. Two local individuals have subsequently begun their own investigation into the disappearance. They have obtained large amounts of information, however [they] would like to review the sheriff's files. We have told them that under . . . Minnesota Statute 13.82, Subd. 7, the investigation is still open and, therefore, is confidential or non-public protected information. However, one of the individuals had access to the materials during a previous sheriff's administration. He believes that since he already had access to the information, it is no longer confidential or non-public information. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Conrow asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, what is the classification of active criminal investigative data under section 13.82, subdivision 7, to which the requestor, a member of the public, previously was granted access?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.82, subdivision 7, criminal investigative data, i.e., 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 is confidential or protected nonpublic while the investigation is active. Inactive investigative data is public [with exceptions]. </p><p> Further, an investigation becomes inactive upon the occurrence of any of the following events: </p><p class="opinion_quote"> (a) a decision by the agency or appropriate prosecutorial authority not to pursue the case; <br /> (b) expiration of the time to bring a charge or file a complaint under the applicable statute of limitations, <br /> or 30 years after the commission of the offense, whichever comes earliest; or <br /> (c) exhaustion of or expiration of all rights of appeal by a person convicted on the basis of the investigative data. </p><p> Section 13.82, subdivision 7, also states: [d]ata determined to be inactive under clause (a) may become active if the agency or appropriate prosecutorial authority decides to renew the investigation. </p><p> According to Mr. Conrow, one of the data requestors had obtained access to the data in question during a previous sheriff's administration. He stated that the investigation is still open. </p><p> Regardless whether a previous sheriff reached a different conclusion, the current Lake County Sheriff is the responsible authority for the data in question, and, accordingly, has the responsibility to provide proper access to those data. Mr. Conrow stated the investigation is still active; therefore, pursuant to section 13.82, subdivision 7, the data are confidential or protected nonpublic, and not accessible to the public. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue raised by Mr. Conrow is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, Chapter 13, active criminal investigative data under section 13.82, subdivision 7, are classified as confidential or protected nonpublic, regardless whether a previous responsible authority provided a member of the public with access to those data. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Dana Badgerow <br /> Commissioner </p><p class="date"> Dated: October 28, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2664122664112022-01-19T19:25:46Z266258266271266262266263266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267487" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-21T15:14:43ZDid Independent School District 832, Mahtomedi, comply with Minnesota Statutes, Chapter 13, in responding to a June 1, 2004, request for access to data?October 21, 2004; School District 832 (Mahtomedi)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 5, 2004, IPAD received a letter dated September 9, 2004, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data about his/her child that Independent School District 832, Mahtomedi, maintains. </p><p> In response to X's request, IPAD, on behalf of the Commissioner, wrote to Mark Wolak, the Superintendent. The purposes of this letter, dated September 14, 2004, were to inform him of X's request and to ask him to provide information or support for District's position. On September 24, 2004, IPAD received a response, dated same, from Karen Kepple, an attorney representing the District. </p><p> A summary of the facts as X provided them is as follows. In a letter dated June 1, 2004, X wrote to Superintendent Wolak, I am requesting copies of my [child's] special education records beginning with the school year 1997-1998 through the present. </p><p> The District's Data Compliance Official/Designee, Kay Korupp, responded in a letter dated June 8, 2004: The District has provided you with copies in the past and is not obligated to give you a second copy. No new material has been added since we last gave you copies of those materials. </p><hr /><br /><h2> Issue: </h2><p> In X' s request for an opinion, s/he asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did Independent School District 832, Mahtomedi, comply with Minnesota Statutes, Chapter 13, in responding to a June 1, 2004, request for access to data? </td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her child. </p><p> Section 13.04, subdivision 3, also contains a provision that puts a limit on a data subject's access to data: After an individual has been shown the private data...the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. However, it is the Commissioner's opinion that this provision does not apply to educational data. Access to educational data is governed by both Chapter 13 and the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 C.F.R. Part 99. FERPA does not contain any provision permitting educational institutions to withhold data in situations similar to those regulated by section 13.04, subdivision 3. Federal law preempts state law, which, in this case, means that state law cannot place further restrictions on a data subject's rights to gain access to educational data. </p><p> In her comments to the Commissioner, Ms. Kepple wrote: </p><p class="opinion_quote"> The fact of the matter is [X] had been provided already with copies of [X's child's] special education records, recently enough that the record had not changed. </p><p class="opinion_quote"> ...It is reasonable to assume that either [X] had no intention of reviewing the data requested on June 1, 2004 or that [X] did not review the same data previously requested and already provided. Presumably, [X] did not intend to review the same 1,000 pages twice. It is much more likely that [X's] latest request is an attempt to inflict upon the district the cost and burden of compiling and making 1,000 copies again. </p><p> Pursuant to state and federal law, the District was required to provide X copies of the data s/he requested in the June 1, 2004, letter. Further, pursuant to section 13.04, subdivision 3, the District was required to provide the data to X within ten working days. The District did not do so. </p><p> The following note is in order. A government entity is within its right to establish a policy that requires data requestors to pay all or part of any copy costs before providing copies. If the District is concerned that individuals will not pay copy fees, it is reasonable for the District to establish a policy requiring advance payment. In this case, because the data X requested are educational records that relate to a child with a disability, the District must consider the following provisions of state and federal law: (1) An agency or institution that receives a request for copies of the educational records of a child with a disability may charge a fee that reflects the costs of reproducing the records except when to do so would impair the ability of the child's parent...to exercise their right to inspect and review those records (section 13.04, subdivision 5); (2) Each participating agency may charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records (34 C.F.R. section 300.566, of the federal regulations promulgated under the Individuals with Disabilities Education Act); and (3) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student (34 C.F.R. section 99.11). </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that X raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Independent School District 832, Mahtomedi, did not comply with Minnesota Statutes, Chapter 13, in responding to a June 1, 2004, request for access to data. </td></tr></tbody></table><br /><p> Signed: </p><p> Kent Allin <br /> Acting Commissioner </p><p class="date"> Dated: October 21, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2674872664072670142663162663182665332022-01-19T19:25:46Z266258266768266358266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267096" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-20T15:15:43ZDid Gary L. Fischler & Associates comply with Minnesota Statutes, Chapter 13, in responding to X's April 28, 2003, request for data? Did Gary L. Fischler & Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Donna Wood on June 19, 2003? Did Gary L. Fischler & Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Roberta Pisa between September 15, 2003, and December 5, 2003?October 20, 2004; Gary Fischler & Associates36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" cellspacing="0" cellpadding="20" border="0"> <tbody> <tr> <td valign="top" align="left"> <p><strong>Note:</strong> <strong>In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.</strong></p> <h2>Facts and Procedural History:</h2> <p>On August 30, 2004, IPAD received a letter dated August 17, 2004, from X. In his/her letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data that Gary L. Fischler and Associates (GFA) maintains, and whether GFA inappropriately released private data of which X is the subject.</p> <p>In response to X's request, IPAD, on behalf of the Commissioner, wrote to Gary Fischler. The purposes of this letter, dated September 1, 2004, were to inform him of X's request and to ask him to provide information or support for GFA's position. On September 20, 2004, IPAD received a response, dated same, from Mark Anfinson, an attorney representing GFA.</p> <p>Some brief background information is as follows. In the opinion request, X wrote:</p> <p class="opinion_quote">I...request opinions about actions arising from my relationship with Gary L. Fischler and Associates, hired for services by the Department of Rehabilitation Services (VR), division of DEED [the Minnesota Department of Employment and Economic Development]....</p> <p class="opinion_quote">...I am losing my hearing...I applied, and was accepted for services from VR in June, 2000 on the basis of my hearing impairment....I did not use the offered services at that time, as I got a full-time...position. In February, 2002, after another significant drop in my hearing, I left this position, returned to VR, and was again accepted for services on the basis of my hearing impairment.</p> <p>The first issue X asked the Commissioner to address is whether GFA responded in a timely manner to an April 28, 2003, request for data.</p> <p>The second and third issues relate to whether GFA inappropriately released private data about X to DEED.</p> <p>Note: For purposes of this opinion, the Commissioner takes the position that GFA, pursuant to Minnesota Statutes, section 13.05, subdivision 11, is subject to the requirements of Chapter 13 as if it were a government entity. (See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267008#/detail/appId/1/id/267691" title="04-009" target="_blank">Advisory Opinion 04-009</a>.) Also, because GFA did not indicate that statutory authority exists for it to disseminate private data about X to DEED, GFA may not do so lawfully without first obtaining informed consent from X.</p> <hr /> <br /> <h2>Issue:</h2> <p>In X's request for an opinion, s/he asked the Commissioner to address the following issues:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, in responding to X's April 28, 2003, request for data?</li> <li>Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Donna Wood on June 19, 2003?</li> <li>Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Roberta Pisa between September 15, 2003, and December 5, 2003?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, in responding to X's April 28, 2003, request for data?</em></p> <p>Pursuant to section 13.04, subdivision 3, when an individual requests access to data of which s/he is the subject, the government entity must respond within ten working days.</p> <p>In an April 28, 2003, email to Dr. Fischler, X wrote, This is also a formal request for release of records. I am asking now that all of my records pertaining to these sessions be released to me immediately.</p> <p>In his/her opinion request, X wrote that on May 7, 2003, X called GFA to inquire about the records. X stated that s/he spoke with a staff person and also left a message for Dr. Fischler. X also wrote an email on that day to Dr. Fischler and inquired about the status of the request.</p> <p>In the opinion request, X wrote, Gary Fischler wrote back to me and indicated that he had not sent my records because he did not have my address.</p> <p>X responded to Dr. Fischler in an email dated May 7, 2003, I didn't realize you would be sending the records yourself and that you were waiting personal receipt of my address. I assumed your administrator...would be sending the file; she has my address (she has told me she was waiting on your order to release my records to me). X provided the mailing address to Dr. Fischler.</p> <p>X further wrote in the opinion request that X received some of the records on May 9, 2003. X realized that some data were missing. X wrote to Dr. Fischler on May 11, 2003, via email and asked for the missing data. In X's opinion request, X wrote, On May 14th, 2003, Gary Fischler sent the missing e-mail with another e-mail pertaining to me, attached to it. I want to note that had I not seen the reference to one of the missing emails in the data Gary Fischler sent, I would not have known that the missing emails existed at all, and I would not have known that I would have to ask Gary Fischler it [sic].</p> <p>In his comments to the Commissioner, Mr. Anfinson wrote:</p> <p class="opinion_quote">In [X's] August 17, 2004 letter seeking the Opinion, X states that [X] made a written request for copies of [X's] records in an e-mail to Dr. Fischler on April 28, 2003. While this is correct, [X] did not include in the request a mailing address, nor did [X] suggest any other method for obtaining the copies. As X acknowledges, Dr. Fischler contacted [X] on May 7, 2003, telling [X] that the records could not be forwarded without a mailing address (I note that this was still well within the time period permitted under the statute). X suggests that Dr. Fischler's administrator (apparently the office manager) did have [X's] mailing address. This, however, is incorrect, as an e-mail Dr. Fischler sent to his office manager the next day corroborates; a copy of that e-mail (dated May 8) is enclosed.</p> <p class="opinion_quote">X subsequently provided [X's] address, and Dr. Fischler's office then promptly sent all of the requested records to [X]. While X says that [X] received some of [X's] records on May 9, the fact is that [X] admits [X] received essentially all them. [X's] request for an opinion states that [X] saw there was that [sic] least one document missing. This demonstrates that under any interpretation, [X] received virtually [X's] entire file, as requested. Nonetheless, I emphasize that according to Dr. Fischler, X was sent everything in the first mailing. In other words, we do not agree that any documents were missing from the records initially mailed to X, nor does it appear that [X] has evidence to the contrary. I would also note that when X did contact GFA claiming a document was missing, the requested document (and more) was promptly sent to [X].</p> <p>Here, there is a factual dispute the Commissioner cannot resolve. X made his/her data request on April 28, 2003. X asserts that s/he received most of the data on May 9, 2003, which is within the ten day time period prescribed by statute. X also asserts that s/he received additional data on May 14, 2003, which is past the ten day deadline. Conversely, Mr. Anfinson states GFA sent all the data in the first mailing and does not agree that any documents were missing. Because the Commissioner cannot resolve this factual dispute, he cannot determine, with certainty, whether GFA responded in a timely manner to X's April 28, 2003, request for access to data.</p> <h2>Issue 2:</h2> <p><em>Did Gary L. Fischler amp; Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Donna Wood on June 19, 2003?</em></p> <p>Because GFA must comply with the requirements of Chapter 13 as if it were a government entity, and there is no statutory provision authorizing dissemination of private data about X to DEED, GFA can release private data about X only if it has obtained X's informed consent. (See section 13.05, subdivision 4(d).) Further, the data GFA maintain about X are private pursuant to Minnesota Statutes, section 268A.05.</p> <p>In his/her opinion request, X wrote:</p> <p class="opinion_quote">On 6/19/03 Ms. Wood called me back and told me she had talked with Gary Fischler that day about my case. I was quite surprised that she had talked with him without obtaining a release of information from me....I would most certainly have assumed that if Gary Fischler were going to speak with staff at VR [a division of DEED] that he would have asked me to sign a release of information agreement....</p> <p class="opinion_quote">I had signed no further release of information agreement with [GFA] after I rescinded the 1st release agreement, save for an agreement to release a three page report, signed on 4/24/03. Gary Fischler did not have any release of information agreement, signed by me, allowing him or anyone from his office to speak with Donna Wood or anyone at VR about my case. And I had rescinded my release of information for VR to speak with Gary Fischler about my case on 5/10/03.</p> <p>In his comments to the Commissioner, Mr. Anfinson stated:</p> <p class="opinion_quote">My client categorically denies that any private data about X were released to DEED employee Donna Wood, on June 19, 2003 or any other date. While Dr. Fischler did talk to Ms. Wood on June 19, at no time during that conversation were private data disseminated.</p> <p class="opinion_quote">Ms. Wood had contacted Dr. Fischler pursuant to X's evident request to DEED that the records on X maintained by Dr. Fischler be expunged. According to Dr. Fischler's records, he and Ms. Wood then talked about whether an expungement request could be granted, and the operations and procedures generally employed at GFA regarding such a request. Indeed, Dr. Fischler's notes indicate that he expressly told Ms. Wood that he could not talk specifically about X's file on that occasion. In other words, at no time during this conversation did Dr. Fischler and Ms. Wood improperly discuss [X's] case in any way whatsoever. Based on X's request for the advisory opinion and the accompanying documents, I do not understand that [X] has any evidence to the contrary. Instead, [X] appears to be engaging in pure speculation.</p> <p>Based on the documentation provided by both parties, the Commissioner cannot determine, with certainty, whether GFA released private data about X to Ms. Wood. X asserts that GFA released private data about X to a DEED employee and Mr. Anfinson denies this allegation. The Commissioner is unable to resolve this factual dispute. If GFA did release private data about X to Ms. Wood without first obtaining consent from X, GFA did not comply with Chapter 13. However, if, as Mr. Anfinson argues, GFA did not release any private data about X to Ms. Wood, GFA is in compliance with Chapter 13.</p> <h2>Issue 3:</h2> <p><em>Did Gary L. Fischler Associates comply with Minnesota Statutes, Chapter 13, if it released private data about X, without X's consent, to DEED employee Roberta Pisa between September 15, 2003, and December 5, 2003?</em></p> <p>In X's opinion request, X wrote:</p> <p class="opinion_quote">...Eventually, on 9/15/03, I spoke with VR Director of Consumer Services, Roberta Pisa. She indicated she would conduct an investigation of my numerous complaints. Again, I never dreamed that she or VR would feel free to discuss my case and therefore my private data with Gary Fischler...I spoke to Ms. Pisa one time on the telephone, and asked to meet with her. Unfortunately, unbeknownst to me, long before she and I ever met to discuss my complaints, Ms. Pisa had apparently already discussed my case with Gary Fischler when we met in December 2003.</p> <p class="opinion_quote">At some point, between the time Ms. Pisa and I first spoke on 9/15/03, and the time we met, on 12/05/03, Ms. Pisa had conducted an investigation of my complaints, and had spoken with Gary Fischler about my case.... <strong>And again, I did not give Gary Fischler permission to discuss my case or my private information with Roberta Pisa, or anyone at VR. Neither VR or Gary Fischler offered me the opportunity to have any control over the release of my private information.</strong></p> <p class="opinion_quote">Unfortunately, it appears that Gary Fischler and Roberta Pisa openly discussed me and my case, neither of them in possession of a release of information agreement signed by me. Ms. Pisa assured me, at our meeting in December 2003, that she had discussed my case with Gary Fischler. In an email to me, dated December 15, 2003, Roberta Pisa indicates that she had at least one conversation with Gary Fischler about my case. [Emphasis provided.]</p> <p>In his comments to the Commissioner, Mr. Anfinson wrote:</p> <p class="opinion_quote">...At no time did Dr. Fischler or anyone else in his office discuss with Ms. Pisa private data about X. Furthermore, X offers no evidence of any kind to the contrary.</p> <p class="opinion_quote">Again, Dr. Fischler did talk with Ms. Pisa about X on occasion during the time period specified. However, these conversations were confined to general discussions about how the complaints that X was apparently making to VR might be dealt with. Dr. Fischler took the same position with Ms. Pisa as he has with Ms. Woods: any specific information created or collected about X in his files could not be disclosed by him. Furthermore, they divulged no private data about X to him.</p> <p>In [X's] request for an opinion, X claims among other things that Ms. Pisa indicated in an e-mail that she had at least one conversation with Gary Fischler about [X's] case. To the extent this is intended to suggest that any private data were discussed, it is simply wrong. Furthermore, X's characterization of the e-mail is inaccurate. Nothing in the e-mail (included as an exhibit with X's request for an opinion) in any way supports the notion that private data were disseminated or discussed in the conversation between Ms. Pisa and Dr. Fischler.</p> <p>X also contends there is other evidence that GFA passed private information about [X] to VR. This allegation appears to be confined to information about the fact that X had evidently stopped therapy, which X claims [X] had disclosed orally to an associate of Dr. Fischler's. Once again, however, X is engaging in sheer speculation. There is no evidence whatsoever to support the accusation. Certainly GFA denies that any such transfer of private data occurred.</p> <p>The Commissioner carefully has examined the documentation X provided and is of the opinion that it does not demonstrate, with certainty, that GFA released private data about X to Roberta Pisa. Without such documentation, the Commissioner must look to the comments provided by X and Mr. Anfinson. X asserts that GFA did release private data to Ms. Pisa while Mr. Anfinson counters that GFA did not release any private data. The Commissioner cannot resolve this dispute and, therefore, cannot determine whether GFA inappropriately disseminated private data about X.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that X raised is as follows:</p> <table> <tbody> <tr valign="center" align="left"> <td id="opinion_issuebox"> <ol> <li>The Commissioner cannot determine whether Gary L. Fischler Associates complied with Minnesota Statutes, Chapter 13, in responding to X's April 28, 2003, request for data.</li> <li>The Commissioner cannot determine whether Gary L. Fischler Associates released private data about X, without X's consent, to DEED employee Donna Wood on June 19, 2003.</li> <li>The Commissioner cannot determine whether Gary L. Fischler Associates released private data about X, without X's consent, to DEED employee Roberta Pisa between September 15, 2003, and December 5, 2003.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Kent Allin <br /> Acting Commissioner</p> <p class="date">Dated: October 20, 2004</p> <hr /></td> </tr> </tbody> </table> </div>2670962668132022-01-19T19:25:45Z266258266271266296266272266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267593" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-20T15:14:43ZDid the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to July 15 and August 4, 2004, requests for (1) a copy of all past written forms of public access procedures of the City, including the dates they were officially adopted and (2) a copy of the resolution the City passed adopting the City's Request for Information Policy? Did the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect the transcript or minutes of any public hearing regarding the City's "current Request for Information Policy or past public access procedures?" Did the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect (1) the document "showing who [is] the current designated authority or responsible authority" and a document showing the date of appointment of that person and (2) the document "showing who [is] the current data practices compliance official" and a document showing the date of appointment of that person?October 20, 2004; City of Warren36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 7, 2004, IPAD received a letter, dated same, from Elden Elseth. In his letter, Mr. Elseth asked the Commissioner to issue an advisory opinion regarding his access to certain data that the City of Warren maintains. </p><p> In response to Mr. Elseth's request, IPAD, on behalf of the Commissioner, wrote to Robert Brooks, the City Clerk. The purposes of this letter, dated September 9, 2004, were to inform him of Mr. Elseth's request and to ask him to provide information or support for the City's position. On October 13, 2004, IPAD received a response, dated same, from Mr. Brooks. </p><p> A summary of the facts is as follows. Mr. Elseth wrote two letters to the City, in which he asked for certain data. In a letter dated July 15, 2004, Mr. Elseth wrote to Mr. Brooks; the first and second items of the letter are relevant to this opinion. Mr. Elseth wrote: </p><p class="opinion_quote"> 1. I note that there is no date of adoption of the <strong> Request for Information Policy </strong>. . When was the official adoption date by the City Council of Warren of this policy? I would request a single copy of the resolution which was passed adopting said policy... </p><p class="opinion_quote"> 2. When was the <strong> Request for Information Policy </strong> first adopted? I would request single copies of all previous Policy statements or past written forms of the public access procedures of the City of Warren, MN which should include dates that they were officially adopted.... </p><p> In his opinion request, Mr. Elseth noted that as of September 7, 2004, the date of his opinion request, he had not received a response from the City. </p><p> In a letter dated August 4, 2004, Mr. Elseth clarified the requests he made on July 15, 2004. Regarding the requested documents referred to above, Mr. Elseth wrote that if the City were going to charge him for single copies of the documents, he wished to inspect them. In addition, Mr. Elseth asked to inspect the following data: </p><p class="opinion_quote"> 3. ...the transcript or minutes of any public hearing in regard to the City of Warren's current Request for Information Policy or past public access procedures </p><p class="opinion_quote"> 4. ...the document showing who the current designated authority or responsible authority for the City of Warren is in regard to public access procedures and a document showing the date of appointment of that person. In addition, I request access for the purpose of inspection the document showing who the current data practices compliance official is for the City of Warren in regard to public access procedures and a document showing the date of appointment of that person. </p><p> In his opinion request, Mr. Elseth noted that as of September 7, 2004, he had not received a response from the City. </p><hr /><br /><h2> Issues: </h2><p> In his request for an opinion, Mr. Elseth asked the Commissioner to address the following issues: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> Did the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to July 15 and August 4, 2004, requests for (1) a copy of all past written forms of public access procedures of the City, including the dates they were officially adopted and (2) a copy of the resolution the City passed adopting the City's <i>Request for Information Policy?</i></li><p /><li> Did the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect the transcript or minutes of any public hearing regarding the City's current <i>Request for Information Policy</i> or past public access procedures? </li><p /><li> Did the City of Warren comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect (1) the document showing who [is] the current designated authority or responsible authority and a document showing the date of appointment of that person and (2) the document showing who [is] the current data practices compliance official and a document showing the date of appointment of that person? </li></ol></td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) </p><p> In his comments to the Commissioner, Mr. Brooks wrote: </p><p class="opinion_quote"> The City is prepared to produce the information requested in the July 15 and August 4, 2004 letters to the extent it is [sic] exists, with respect to past written forms of public access procedures of the City and a copy of the resolution adopting the City's Request for Information Policy. The City will further arrange to allow inspection of any transcript or minutes of public hearings regarding the City's Request for information Policy and any documentation showing the current designated responsible authority or current data practices compliance official. </p><p class="opinion_quote"> The City is in the process of identifying documents responsive to these requests and cannot represent at this time that all of the requested documents by Mr. Elseth exist. We also note that there is no beginning date for some of the requests. This makes it burdensome to identify all documents that may be responsive to the request for, e.g., past policies. </p><p> As stated above, when an individual requests access to data of which s/he is not the subject, government entities must respond within a reasonable time. Here, Mr. Elseth hand delivered his July 15 request on July 16, 2004. He hand delivered his August 4, request on August 4. Mr. Elseth apparently did not receive any response from the City until after he submitted his opinion request on September 7, 2004. In the Commissioner's opinion, this is not timely. </p><p> The following comments are in order. In his response, Mr. Brooks states, [the City] cannot represent at this time that all of the requested documents by Mr. Elseth exist. Section 13.03, subdivision 1, states, The responsible authority in every [government entity] shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Further, section 13.03, subdivision 2, states, The responsible authority in every [government entity] shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner. The Commissioner reminds his readers that, pursuant to Chapter 13, government entities should be able to determine within a reasonable time whether requested data either do or do not exist. The Commissioner finds it troubling that, after two months, the City has not been able ascertain whether it maintains the data Mr. Elseth requested. </p><p> Finally, if a government entity has a question about the scope of a data request, it needs to ask the requestor for clarification. Clarification should be sought soon after receiving a request to ensure a timely response. Here, if the City needs clarification about some parts of Mr. Elseth's requests, it should seek it immediately. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issues that Mr. Elseth raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox"><ol><li> The City of Warren did not comply with Minnesota Statutes, Chapter 13, in regard to July 15 and August 4, 2004, requests for (1) a copy of all past written forms of public access procedures of the City, including the dates they were officially adopted and (2) a copy of the resolution the City passed adopting the City's <i>Request for Information Policy.</i></li><p /><li> The City of Warren did not comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect the transcript or minutes of any public hearing regarding the City's current <i>Request for Information Policy</i> or past public access procedures. </li><p /><li> The City of Warren did not comply with Minnesota Statutes, Chapter 13, in regard to an August 4, 2004, request to inspect (1) the document showing who [is] the current designated authority or responsible authority and a document showing the date of appointment of that person and (2) the document showing who [is] the current data practices compliance official and a document showing the date of appointment of that person. </li></ol></td></tr></tbody></table><br /><p> Signed: </p><p> Kent Allin <br /> Acting Commissioner </p><p class="date"> Dated: October 20, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2675932662992666682022-01-19T19:25:44Z266258266263266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267868" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-18T15:14:43ZDid Independent School District 832, Mahtomedi, comply with Minnesota Statutes, Chapter 13, when it denied access to certain directory information about a student's parents?October 18, 2004; School District 832 (Mahtomedi)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 8, 2004, IPAD received a letter dated September 5, 2004, from John Wachlarowicz. In the letter, Mr. Wachlarowicz asked the Commissioner to issue an advisory opinion regarding a response by Independent School District 832, Mahtomedi, to his June 23, 2004, request for data.</p> <p>In response to Mr. Wachlarowicz's request, IPAD, on behalf of the Commissioner, wrote to Mark Wolak, Superintendent of the District. The purposes of this letter, dated September 13, 2004, were to inform him of Mr. Wachlarowicz's request and to ask him to provide information or support for the District's position. On September 24, 2004, IPAD received a response, dated same, from Karen Kepple, an attorney representing the District.</p> <p>On June 23, 2004, Mr. Wachlarowicz made a request to Mr. Wolak, the District's responsible authority, for ... all directory information the District maintains or has maintained on the parents of [a named student] (name, address, phone number, etc.). Kay Korupp, the Data Compliance Official/Designee for the District, responded in a letter dated July 2, 2004, that the data were not available to Mr. Wachlarowicz because of School Board Policy 509 that limited use of directory information on parents to ...matters pertaining to school district business, functions, or purposes.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Wachlarowicz asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Independent School District 832, Mahtomedi, comply with Minnesota Statutes, Chapter 13, when it denied access to certain directory information about a student's parents?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Provisions of both Minnesota and federal law govern access to data about students. Section 13.32 classifies data relating to students (termed educational data ) and incorporates by reference much of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section1232g, and its implementing Rules, 34 CFR Part 99. Subject to limited exceptions, educational data (termed education records under FERPA) are private and may not be released without consent.</p> <p>Congress did provide some exceptions so that certain disclosures could be made and those are detailed in the federal regulations that are found at 34 CFR part 99. Minnesota has generally followed these exceptions and the state provisions can be found within section 13.32. The Minnesota Legislature's ability to act in the area of access to and dissemination of school data is limited by the provisions of FERPA and the accompanying regulations.</p> <p>Directory information is one of the categories of data about students that can be disclosed. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267591" title="01-078" target="_blank">Advisory Opinion 01-078</a>, the Commissioner described the process for designating directory information in the following way:</p> <p class="opinion_quote">FERPA provides that the school board must determine what data elements about students are not considered harmful or an invasion of privacy if disclosed. 20 U.S.C. section 11232g (a)(5). The data elements that the U.S. Department of Education has offered as examples to a school board for consideration as directory information include:</p> <p class="opinion_quote">student's name, home address, telephone number, email address, photograph, date and place of birth, field of study, dates of attendance, grade level, enrollment status, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received and the most recent educational agency or institution attended.</p> </dd> <dd> <p class="opinion_quote">34 CFR section 99.3 (definition of directory information, as amended and effective August 7, 2000).</p> <p>The school board is free to choose which of the data elements it wants to designate as directory information, to make its determination of what constitutes directory information once each year, and notify parents of its decision. 34 CFR section 99.7. Parents are also given the option to have the directory information about their children not be public and the school district must have a way to honor such a request. 34 CFR section 99.37. Directory information is public data in Minnesota and must be provided to anyone who asks. Minnesota Statutes, section 13.32, subdivision 5.</p> <p>The Legislature classified data about the parents of students as private but has provided a mechanism by which school districts can treat data about the parents of students as public. Specifically, according to section 13.32, subdivision 2 (c):</p> <p class="opinion_quote">Data concerning parents are private data on individuals but may be treated as directory information if the same procedures that are used by a school district to designate student data as directory information under subdivision 5 are followed.</p> <p>Section 13.32, subdivision 5, provides that directory information is public data. According to section 13.02, subdivision 15, public data on individuals, such as data about students and their parents, ...is accessible to the public in accordance with the provisions of section 13.03. In addition, Minnesota Rules 1205.0300, subpart 2, states:</p> <p class="opinion_quote">The responsible authority shall provide access to public data to any person, without regard to the nature of that person's interest in the data.</p> <p>Finally, section 13.05, subdivision 12, prohibits a government entity from asking an individual who is requesting access to public data to identify him/herself, state a reason for, or justify a request to gain access to public government data.</p> <p>In analyzing the situation presented to the Commissioner, it appears that the District has followed the requirements of federal law and established what data elements are directory information. This decision is documented in School Board Policy 509 entitled Protection and Privacy of Pupil Records. In Section I, Paragraph A, directory information is defined in the following way:</p> <p class="opinion_quote">District 832 has identified selected Directory Information relating to students. This information is public. The parent or student may, however, request in writing that any or all of the information below not be released on that individual student. The written request must be received within 30 days after the official notice is published.</p> <p class="opinion_quote">Directory information includes the following information relating to a student: The student's name, date and place of birth, sex, major field of study, participation in officially organized teams, dates of attendance, grade levels completed, degrees and awards received, the most recent previous educational agency or institution attended by the student, pictures for school-approved publications/newspapers, school or classroom websites, or cablecasts, bulletins, programs, or similar school-produced information pieces. Directory information also includes the name, address and telephone number of the student's parent(s) for use in matters pertaining to school district business, functions, or purposes. Except as specifically provided above, directory information does not include identifying data that references religion, race, color, social position or nationality.</p> <p>At issue here is whether the District can set limits on use of directory information about the parents of students. The District argues that the restrictions it has imposed meet the requirements of state and federal law and have the effect of protecting student safety.</p> <p>The Commissioner respectfully disagrees with the District's argument. Having established the name, address and telephone number of the student's parent(s) as directory information, section 13.32, subdivision 5, says that the data are public.</p> <p>Public data are accessible to anyone for any reason and the District cannot place limitations on the use of the data that are public. See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267866#/detail/appId/1/id/267536" title="96-036" target="_blank">Advisory Opinion 96-036</a>. Therefore, the policy as written does not comply with state law. As the policy is inherently flawed, Mr. Wachlarowicz should have received the directory information he requested June 23, 2004, regarding the parents of a named student.</p> <p>The District indicated that it wants to limit access to home address and telephone number information about students and their parents. To accomplish this, the District should not include home address and telephone number for either students or parents in the District's definition of directory information.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Mr. Wachlarowicz is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Independent School District 832, Mahtomedi, did not comply with Minnesota Statutes, Chapter 13, when it denied access to certain directory information about a student's parents.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Kent Allin <br /> Acting Commissioner</p> <p class="date">Dated: October 18, 2004</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2678682662742663862022-01-19T19:25:43Z266258266293266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267769" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-15T15:15:43ZDid Independent School District 276 (Minnetonka), comply with Minnesota Statutes, Chapter 13, in its response to a May 5, 2004, request for public data?October 15, 2004; School District 276 (Minnetonka)36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 7, 2004, IPAD received a letter from Bill Slowter. In his letter, Mr. Slowter asked the Commissioner to issue an advisory opinion regarding a determination made by Independent School District 276 (Minnetonka) about a data practices issue.</p> <p>In response to Mr. Slowter's request, IPAD, on behalf of the Commissioner, wrote to Dennis Peterson, District Superintendent. The purposes of this letter, dated September 7, 2004, were to inform him of Mr. Slowter's request and to ask him to provide information or support for the District's position. On September 27, 2004, IPAD received a response from Joseph E. Flynn, an attorney for the District. A summary of the facts of this matter follows.</p> <p>In a letter dated March 25, 2004, Mr. Slowter wrote to Peggy Stefan, the District School Board Chair, and raised questions regarding whether X, a former School Board member, had violated provisions of Chapter 13. In a letter dated April 15, 2004, Ms. Stefan responded:</p> <p class="opinion_quote">Finally, I can acknowledge that when a complaint is raised, as you have done in this [the March 25, 2004] letter, we will investigate that complaint and if we believe action is appropriate would so act. However, it would appear, given my understanding of data practices law, that such investigation and actions would be private under the law.</p> <p>In a letter dated May 5, 2004, Mr. Slowter wrote to Ms. Stefan, and asked for [t]he existence and status of any complaints against [X] during [his/her] tenure on the Board. Mr. Slowter also sent that letter to Michael J. Lovett, Assistant Superintendent for Human Resources and the District's Data Practices Compliance Official (DPCO).</p> <p>In a letter dated July 28, 2004, Ms. Stefan replied:</p> <p class="opinion_quote">By letter dated March 25, 2004, you made inquiry regarding various alleged conversations with School Board member [X] and inquiring whether certain alleged conversations with [X] and various persons relating to the reorganization of the Arts Center constituted a 'possible' violation of data privacy. Please be advised that I have investigated these inferences [sic] and find no evidence of any data privacy violations as suggested in your letter.</p> <p class="opinion_quote">. . . . As you know, elected officials are the subject of frequent comment by various individuals, but there are no complaints on file in School District offices relating to any formal complaints against [X] or any other board members. Also there are no complaints or evidence of any data privacy violations on file, with the exception of your letter dated March 25, 2004.</p> <p>Mr. Slowter wrote to the Commissioner:</p> <p class="opinion_quote">I am troubled by the District's response. First, it doesn't seem reasonable to require almost 3 months before responding to a simple, straightforward request. Secondly, I'm puzzled by their lack of data. I served on the Minnetonka School Board from 1998 though [sic] 2001 and [X] joined the Board in 2000. During my term as Chair, in October of 2000, a formal complaint was made against [X]. Furthermore, in a letter to another Minnetonka resident dated December 12, 2002 (copy enclosed) that complaint was acknowledged.</p> <p>The December 12, 2002, letter to which Mr. Slowter referred contains the following statements, under the heading Investigation:</p> <p class="opinion_quote">A complaint was made against [X]. Based on the fact that no disciplinary action resulted from the investigation, the School District is not permitted to identify the substance of the charge, as such data is classified as private personnel data pursuant to Minnesota Statutes Section 13.43.</p> <p>Mr. Flynn provided the Commissioner with copies of letters and e-mails between Mr. Slowter and the District, which Mr. Flynn said address overlapping and similar questions . . . . References to the documents will show that Mr. Slowter communicated with Dr. Lovett on numerous occasions from March 25, 2004, through June 29, 2004, addressing various facets of the information request . . . .</p> <p>Mr. Flynn stated, . . . there was confusion relating to the communication regarding [Mr. Slowter's] request dated May 5, 2004, since he sent both to the School Board chair, as well as [Dr. Lovett], creating some misunderstanding as to who was responding to the request. Mr. Flynn wrote that Ms. Stefan believed that she already had addressed 'the complaint question' relating to X in letters she wrote to Mr. Slowter dated April 15, 2004 and June 10, 2004.</p> <p>Mr. Flynn stated: [f]inally, communications were delayed because of the summer recess and attendant vacations of School District personnel and correspondence related to clarification of Mr. Slowter's requests as evidenced in the enclosed communications. According to Mr. Flynn, . . . there were various circumstances which led to the delay in addressing Mr. Slowter's informational requests, including but not limited to . . . [t]he lack of clarity in Mr. Slowter's informational request and the mixing of data information requests with opinion and argument . . . [and] ongoing communications between Mr. Slowter and Dr. Lovett relating to necessary clarification to respond to Mr. Slowter's requests.</p> <p>Mr Flynn wrote: [i]n summary, the line of numerous communications between the School District and Mr. Slowter demonstrate [sic] an ongoing, good faith effort on the part of the School District to provide responses to the data requests of Mr. Slowter.</p> <p>Mr. Flynn also discussed Mr. Slowter's question about why the District told him that there were no complaints against any Board members, when, in Dr. Lovett's letter of December 12, 2002, to a third party, Dr. Lovett referred to a complaint against a Board member and subsequent investigation. According to Mr. Flynn, Ms. Stefan believed the complaint data sought by Mr. Slowter in his May 5, 2004, request, related to the allegations he (Mr. Slowter) made against X in his March 25, 2004, letter. As noted above, Ms. Stefan discussed her investigation of those allegations in her July 28, 2004, letter to Mr. Slowter.</p> <p>Mr. Flynn wrote: Mr. Slowter's opinion request . . . suggests that during his term as School Board Chair in October 2000, a formal complaint was made against X and that this was acknowledged by the School District in a communication dated December 12, 2002 . . . . Mr. Flynn stated that Mr. Slowter reached an erroneous conclusion that Ms. Stefan was inaccurate when she stated to him in her July 28, 2004, letter that there are no formal complaints against X or any other School Board member on file with the School District.</p> <p>According to Mr. Flynn, in a letter dated October 7, 2000, Mr. Slowter, who was then School Board Chair, and the then-Vice Chair, raised questions as to whether or not data privacy rights [of a student and District employee] had been violated . . .by [X]. Mr. Flynn stated that they were not alleging a data privacy violation by School Board member [X] but were calling upon legal counsel to review certain documents and to conduct an investigation to make such a determination.</p> <p>According to Mr. Flynn, in apparent reference to the December 12, 2002, letter to the third party, [a]pparently Dr. Lovett, who was not involved in the matter, but was aware of it by hearsay information, took it as a 'complaint' within the generic usage of the word.</p> <p>Mr. Flynn, in apparent reference to the October 7, 2000, letter from Mr. Slowter, further stated: School Board Chair Stefan did not regard it as a 'complaint' within the meaning of Minnesota Statutes, Chapter 13, but rather regarded it as an inquiry letter . . . . Part of the confusion resulted because apparently Mr. Slowter was asking about the very document that he in fact coauthored . . . .</p> <p>Mr. Flynn wrote:</p> <p class="opinion_quote">In summary, it is respectfully suggested that the October 7, 2000, 'letter of inquiry' was not a 'complaint' within the meaning of Chapter 13, and this determination created some confusion because Dr. Lovett regarded it as a complaint, at least generically speaking, and School Board chair Stefan regarded it simply as an inquiry. This conclusion is further reinforced because the School District would hardly be attempting to conceal a document from the person who coauthored it and obviously had it in his possession.</p> <hr /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Slowter asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Independent School District 276 (Minnetonka), comply with Minnesota Statutes, Chapter 13, in its response to a May 5, 2004, request for public data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 1, personnel data are data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a state agency, statewide system or political subdivision or is a member of or an applicant for an advisory board or commission. Subdivision 2 of section 13.43 classifies specific types of personnel data as public and subdivision 4 classifies all remaining personnel data as private.</p> <p>The data at issue here relate to X, a former District 276 School Board member. School Board members are elected officials. Chapter 13 does not contain a specific classification for data about elected officials. However, the Commissioner has opined that the classification of data about elected officials depends upon whether the entity considers the elected official to be an employee. If so, the data are classified pursuant to section 13.43. If not, the data are presumed public pursuant to section 13.03, subdivision 1. As the Commissioner opined in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704#/detail/appId/1/id/267969" title="99-043" target="_blank">Advisory Opinion 99-043</a>:</p> <p class="opinion_quote">Mr. Roszak further stated: School Board members cannot be treated the same as employees because School Board members are, in effect, the employer and generally cannot be held accountable to a superior other than the public. If data on School Board members were private, then no mechanism for accountability to the public would exist and one of the overall objectives of the [Minnesota Government Data Practices] Act would be frustrated.</p> <p class="opinion_quote">According to Mr. Roszak, the School District does not consider School Board members to be employees, but rather elected officials without employee status. The Legislature did not provide a definition of employee in section 13.43. <em>The American Heritage Dictionary - Second College Edition</em>, Houghten Mifflin Company, 1985, definition of employee as a person who works for another in return for compensation is inconclusive.</p> <p class="opinion_quote">A review of several statutes relating to public employees also appears to be inconclusive. Elected officials are considered employees for purposes of worker's compensation, but not for unemployment compensation or eligibility under the Public Employee Labor Relations Act. (See section 176.011, subdivision 9 (6), section 268.035, subdivision 20 (12), and section 179A.03, subdivision 14 (a).) Pursuant to section 471.61, subdivision 1, a school district (among other government entities) may elect to offer group life, health and/or accident insurance to its officers and employees. According to Mr. Roszak, the District has so elected. In addition, under the same statute, a school district (among others) may determine that a person is an officer or employee if the person receives income from the governmental subdivisions without regard to the manner of election or appointment . . . .</p> <p class="opinion_quote">However, it is the District's position that School Board members are not District employees, and ultimately it is up to the District to make that determination. The Commissioner believes it is reasonable for the District to reach the conclusion that School Board members are not employees, particularly in light of Mr. Roszak's comments concerning public accountability concerns. Accordingly, absent any statute or federal law that provides otherwise, data maintained by the District about any of the School Board members, including data relating to the School Board's deliberations about the allegations against the Board member, are public, pursuant to Section 13.03, subdivision 1.</p> <p>The Commissioner notes that the result is that data about elected officials is treated inconsistently in different government entities. Nonetheless, here, the District apparently has determined that its Board members are employees for purposes of Chapter 13; accordingly, the data at issue here are classified as personnel data under section 13.43.</p> <p>Pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(4), the following data are public: the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action.</p> <p>The October 7, 2000, letter from Mr. Slowter and the Board Vice Chair to Mr. Flynn contains the following statements:</p> <p class="opinion_quote">We asked you a very simple question - 'What is our responsibility when possible data practices infractions surface?' Your response was quick and succinct. You indicated that our strict adherence to data practices guidelines is a very serious matter and we have a clear obligation to investigate possible violations, and if necessary, take action.</p> <p class="opinion_quote">We don't believe that the Board should investigate, as we have neither the legal expertise nor the required objectivity. Thus, as Chair and Vice Chair, we are requesting that your firm, as District legal counsel, conduct an investigation into possible infractions.</p> <p>The letter describes a phased review process for Mr. Flynn to follow, and concludes, [w]hile we're saddened by the need to make this request we strongly believe that protecting the interests of students and staff is our top priority.</p> <p>Mr. Flynn states that the District takes the position that the October 7, 2000, letter was a letter of inquiry, and does not constitute a complaint or charge within the meaning of section 13.43. The Commissioner respectfully disagrees.</p> <p>According to the information provided the Commissioner, at least two Board members discussed with the District's legal counsel their concerns that another Board member had violated Minnesota Statutes, Chapter 13. The October 7, 2000, letter contains references to allegations raised in those discussions, which Mr. Flynn, as the District's legal counsel, subsequently investigated.</p> <p>In his response to the Commissioner, Mr. Flynn stated that he did conduct an investigation and ultimately made a report to the School Board. . . . . The School Board determined not to take any disciplinary action against [X] . . . .</p> <p>Furthermore, Dr. Lovett, the District's DPCO, referred to the allegations made against X as a complaint in his December 12, 2002, letter, and stated the data that identify the substance of the charge were classified as private because the investigation of the complaint did not result in disciplinary action, as provided under section 13.43.</p> <p>Mr. Flynn stated that Dr. Lovett was using the generic meaning of complaint in that letter. However, because the Legislature did not define complaint or charge in section 13.43, the generic or plain meaning is applicable. (See section 645.17, and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267704#/detail/appId/1/id/267412" title="97-003" target="_blank">Advisory Opinion 97-003</a>, which discusses the applicability of dictionary definitions of those terms.)</p> <p>Given the context here, i.e., that two School Board members made allegations that another Board member violated provisions of state law, resulting in an investigation and report by the District's legal counsel, the Commissioner is of the opinion that those allegations constitute a complaint or charge within the meaning of section 13.43, subdivision 2 (4). Accordingly, the District erred in stating otherwise to Mr. Slowter.</p> <p>With respect to the timeliness of the District's response to Mr. Slowter, when an individual requests data of which s/he is not the subject, a government entity must respond in an appropriate and prompt manner (see Minnesota Statutes, section 13.03, subdivision 2(a)) and within a reasonable time (see Minnesota Rules, section 1205.0300).</p> <p>Mr. Flynn stated that among several factors that contributed to the delay in the District's response were the District's need for clarification, and misunderstanding as to who within the District was responding to the request. If the District needed to clarify with Mr. Slowter what data he meant by [t]he existence and status of any complaints against [X] during [his/her] tenure on the Board, it needed to do so upon receipt of his request. Furthermore, the District stated Mr. Slowter's request was confusing because he directed his data requests to both Ms. Stefan and Dr. Lovett. However, the record does not show that the District asked him to do otherwise, and they both responded to his inquiries. If the District has not done so, it should implement the policies and procedures necessary to ensure it responds appropriately to data requests pursuant to Chapter 13.</p> <p>The District did not respond directly to Mr. Slowter's May 5, 2004, request for data until July 28, 2004. That response time is neither prompt nor reasonable.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Mr. Slowter is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Independent School District 276 (Minnetonka), did not comply with Minnesota Statutes, Chapter 13, in its response to a May 5, 2004, request for public data.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Kent Allin <br /> Acting Commissioner</p> <p class="date">Dated: October 15, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2677692667722667722665162663912666682022-01-19T19:25:43Z266258266272266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267235" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-15T15:14:43ZDid the City of Richfield comply with Minnesota Statutes, Chapter 13, in its determination regarding a July 23, 2004, request for access to data?October 15, 2004; City of Richfield36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On September 7, 2004, IPAD received a letter from X. In his/her letter, X asked the Commissioner to issue an advisory opinion regarding a determination about a data practices issue made by the City of Richfield.</p> <p>In response to X's request, IPAD, on behalf of the Commissioner, wrote to Samantha Orduno, City Manager. The purposes of this letter, dated September 14, 2004, were to inform her of X's request and to ask her to provide information or support for the City's position. On September 21, 2004, IPAD received a response from Mary Tietjen, an attorney for the City. A summary of the facts of this matter follows.</p> <p>X was the subject of a traffic stop in February 2002. On July 23, 2004, X requested the following data, of which s/he is the subject, from the City: radio log for a specific case #, dated 2.2.02; criminal record check log, dated 3.19.02; and audio video recording inventory log, dated 2.2.02. X signed an Information Disclosure Request form on July 29, 2004. That form contains notations stating do not have on the lines listing the radio log, and the audio video recording inventory log. The copy of the criminal record check log that X submitted contained the dates of February 2, 2002, and March 1, 2002.</p> <p>X provided the Commissioner with a memorandum dated July 27, 2004, in which City Department of Public Safety staff wrote, in reference to X's data request, that the log of criminal history checks was run along with detention information entered by our department. This information was provided by the Bureau of Criminal Apprehension at the State of Minnesota. The memorandum also states the following: [w]e do not have a radio Log or an Audio Video Recording Inventory Log for the information that [X] requested. We only keep radio traffic recorded and on the logger for 90 days. The information is then erased after that. The video log for booking tapes is kept for a period of 30 days and then is erased after the tape is used.</p> <p>X and Ms. Tietjen also provided the Commissioner with a copy of the General Records Retention Schedule for Minnesota Cities (GRRS) which, apparently, the City has adopted. (See Minnesota Statutes, section 138.17.) X stated to the Commissioner his/her belief that, according to the GRRS, the City is obligated to maintain the radio log for seven years, and the audio video recording inventory log must be retained permanently. X also stated [t]he Criminal Record Log information was inconsistent with date asked for . . . .</p> <p>In her comments to the Commissioner, Ms. Tietjen stated that in response to X's request, the City provided the data promptly to X if the data still existed. If the data no longer existed, [X] was informed of that fact. Also in retaining the records, the City complied with the [GRRS] for all of the relevant categories.</p> <p>With respect to X's request for a copy of the radio log, Ms. Tietjen wrote the following:</p> <p class="opinion_quote">The City interpreted this as a request for the car-to-dispatch radio recording made as a result of [X's] police stop. Under the Retention Schedule, Code # POL 02700 - 911 Recordings, this data must be retained for 30 days. . . . . The City's policy is to retain the 911 Recordings for 90 days. [X] had also requested a copy of the 'car-to-dispatch record' on January 27, 2004 and February 18, 2004 . . . . All of [X's] requests were made after the 90-day period that the City maintains these records and, thus, the data could not be provided. On each occasion, [X] was informed that the data no longer existed. Shortly after [X's] request on July 23, 2004, the City Clerk . . . contacted [X] by telephone and informed [him/her] that the radio log no longer existed and was not available. X signed the Information Disclosure Request form [that contained the notation Do Not Have ] on July 29, 2004; thus, the telephone call would have been made after July 23, 2004, but before July 29, 2004.</p> <p>In a separate matter that is not before the Commissioner here, X and the City appeared at a contested case hearing on September 8, 2004, at which X gave testimony about his/her right to have access to the data at issue in this opinion. Ms. Tietjen wrote to the Commissioner:</p> <p class="opinion_quote">At the hearing on September 8, 2004, [X] referred to a record prepared by the dispatcher when officers perform a traffic stop. This information is known as a 'CAD event' (Computer Aided Dispatch) and is essentially a time stamp of an event when a dispatcher receives a call for service. This was the first time [X] referenced the CAD record, which is different and separate from the 'radio log.' The CAD records are categorized under the Retention Schedule as Code #POL 02800 - Radio Logs Dispatcher and must be retained for seven years. . . . . As [X's] first request for the CAD record was via an implied request through testimony at the September 8, 2004, hearing, the City had not previously provided this record to him. Under separate cover to [X] dated [September 21, 2004], the City is providing [him/her] with a copy of the CAD record.</p> <p>In reference to X's request for the criminal record check log, Ms. Tietjen wrote:</p> <p class="opinion_quote">This document is produced by the State of Minnesota Bureau of Criminal Apprehension who logs all of the criminal histories run by dispatchers at the various dispatch terminals. This information is categorized under Code # POL 03600 of the Retention schedule (Criminal Record Check Log) and must be retained for three years. . . . . The City obtained a print out of the criminal record check log from the State of Minnesota and it was provided to [X.] . . . .</p> <p>Finally, regarding X's request for a copy of the audio video recording inventory log, dated 2.2.02, Ms. Tietjen made the following comments:</p> <p class="opinion_quote">When an individual is brought into the police department, a video tape of the booking processing is made. Under Code # POL 05600 - Video Tape of Booking, these video tapes must be retained for 30 days. . . . Consistent with this, the City's policy is to retain the tapes for 30 days. The City made a video tape of [X's] booking on February 2, 2002. . . . .</p> <p class="opinion_quote">The City also creates a written log of the audio and video booking recordings, which is the data [X] requested on July 23, 2004. This log, however, only contains an inventory of the tapes that are needed for evidentiary purposes. Under Code # POL 05810 - Audio Video Recording Inventory Log, (an inventory of evidentiary audio video recordings) of the Retention Schedule, this log must be retained permanently. . . . . [X's] booking tape was not needed or used for evidentiary purposes; thus it was not entered into the log. Therefore, because the log did not contain any information related to the February 2, 2002, events as requested by [X], it was not provided to [him/her]. . . . the City Clerk telephoned [X] shortly after July 23, 2004 to inform [him/her] that the log was not available. . . . X signed the Information Disclosure Request form [that contained the notation Do Not Have ] on July 29, 2004; thus, the telephone call would have been made after July 23, 2004, but before July 29, 2004.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his/her request for an opinion, X asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the City of Richfield comply with Minnesota Statutes, Chapter 13, in its determination regarding a July 23, 2004, request for access to data?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>Pursuant to Minnesota Statutes, section 13.04, when an individual requests access to data of which s/he is the subject, the government entity is required to respond within ten working days. In addition, pursuant to section 13.03, subdivision 2, requests must be complied with in an appropriate manner.</p> <p>With respect to X's request for a copy of the radio log, it is the Commissioner's opinion that the City needed to clarify the data X was requesting at the time X made the request. The GRRS contains entries for 911 Recordings and Radio Logs - Dispatcher. The City interpreted X's request for a copy of the radio log to be for the former, until the hearing on September 8, 2004, when it interpreted X's testimony to mean that s/he was actually seeking the latter. It is not clear to the Commissioner just what X meant by his/her July 23, 2004, request; given the two descriptions on the retention schedule, the City should have clarified which, if either, X was seeking.</p> <p>With respect to X's request for a copy of the criminal record check log, dated March 19, 2002, X stated to the Commissioner that the log the City provided him/her was inconsistent with date asked for. The City gave X a copy of the criminal record check log dated February 2, 2002, and March 1, 2002. Ms. Tietjen did not discuss the discrepancy in the dates. If there is an entry related to X in the criminal history check log dated March 19, 2002, the City should have provided X with a copy. If there is not, the City should have so informed X.</p> <p>Regarding X's request for a copy of the audio video recording inventory log, for February 2, 2002, Ms. Tietjen stated that because his/her booking tape was not used for evidentiary purposes, it was not entered into the log, so therefore the log did not contain any information related to the February 2, 2002, events as requested by [X]. Under the City's retention schedule, it must retain permanently its inventory log of audio video recordings that are used for evidentiary purposes. The City properly informed X that it did not maintain data about him/her in its audio video recording inventory log for February 2, 2002.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by X is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">The City of Richfield did not comply with Minnesota Statutes, Chapter 13, in its determination regarding a July 23, 2004, request by a data subject for access to the radio log dated February 2, 2002, because it needed to clarify with the data subject the specific data sought. The City also needed either to provide a copy of the criminal record check log, dated March 19, 2002, to the data subject, or inform him/her that it did not have an entry in the log for that date that contained data about him/her. The City did respond properly to the request for the audio video recording inventory log, dated February 2, 2002.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Kent Allin <br /> Acting Commissioner</p> <p class="date">Dated: October 15, 2004</p> <hr /></dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672352666682022-01-19T19:25:42Z266258266324266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267213" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-13T15:14:43ZDid the Minnesota Department of Education comply with Minnesota Statutes, Chapter 13, in its responses to requests for data dated April 6, 2004, and July 19, 2004?October 13, 2004; Minnesota Department of Education36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 3, 2004, IPAD received a letter from Kevin Pachl, in which he asked the Commissioner to issue an advisory opinion regarding a determination of the Minnesota Department of Education (MDE) about a data practices issue. IPAD asked Mr. Pachl to supply additional information, which he did on September 7, 2004. </p><p> In response to Mr. Pachl's request, IPAD, on behalf of the Commissioner, wrote to Alice Seagren, Commissioner of MDE. The purposes of this letter, dated September 9, 2004, were to inform her of Mr. Pachl's request and to ask her to provide information or support for the Department's position. On September 24, 2004, IPAD received a response from Chas Anderson, MDE Assistant Commissioner. A summary of the facts of this matter follows. </p><p> In a letter dated April 6, 2004, Mr. Pachl asked MDE for a copy of any special education fiscal complaints filed with MDE against Mahtomedi ISD #832 from 2000 to present as well as any MDE findings and documentation of District corrective actions and/or responses regarding same. </p><p> In response, MDE provided Mr. Pachl with redacted data. Mr. Pachl wrote again to MDE, in a letter dated July 19, 2004, and asked for the legal basis for the redaction. In a letter dated August 20, 2004, MDE responded that it is unable to disclose this information because it could be personally identifiable information under Minnesota Statutes, section 13.32 [and therefore classified as private]. </p><p> In his opinion request, Mr. Pachl asked whether MDE had responded appropriately to his requests, given that they sent me redacted data and didn't tell me the legal basis for the redaction . . . . [and] [w]hen I wrote and asked them the reason - it took them a month to respond. </p><p> In her comments to the Commissioner, Ms. Anderson stated that MDE had properly redacted private data from the data it provided to Mr. Pachl. She wrote: </p><p class="opinion_quote"> On April 6, 2004, Mr. Pachl requested copies of MDE complaint decisions. On April 15, 2004, MDE provided Mr. Pachl the public information. That was a timely response. MDE did not deny Mr. Pachl access to government data in April 2004; it provided him the information as he requested. There is no requirement in Chapter 13 that a government agency - when disclosing public data - must explain the legal basis for redacting the private data so that the person receives public data. Minn. Stat. section 13.03, subd. 3(f) (which requires a government agency to cite the specific statutory section as the basis for which it denied access to requested data) has no application to the April 2004 request and response because MDE provided Mr. Pachl access to the data he requested. </p><p> With respect to Mr. Pachl's July 2004 request for the legal basis for the redaction, Ms. Anderson wrote: </p><p class="opinion_quote"> When someone other than the subject of the data submits a request for public data, the agency must comply with the request in an 'appropriate and prompt manner.' Minn. Stat. section 13.03, subd. 2; Minn. R. 1205.0300, subp. 3. In addition, when a government agency denies access to data, the law requires that the agency inform the requesting person of the determination 'in writing as soon after that time as possible.' Minn. Stat. section 13.03, subd. 3(f). In reassessing whether or not Mr. Pachl was entitled to the name of the complainant, MDE had to make multiple factual and legal determinations. For example, MDE staff had to consult with employment and licensing records (to determine whether the complainant was an employee of the district). MDE had to check whether the parent gave written consent for disclosure of the information. MDE also consulted with legal counsel. It was important that MDE assure that it does not violate multiple federal or state laws to comply with Mr. Pachl's request. At the end, MDE concluded that the data Mr. Pachl requested remained private data and it promptly notified Mr. Pachl of its determination in writing as soon after that time as possible. In sum, MDE's response was appropriate and reasonably prompt in light of the significant factual and legal issues raised by Mr. Pachl's request. </p><p> Ms. Anderson also discussed the classification of the redacted data. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Pachl asked the Commissioner to address the following issue: </p><dd><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Did the Minnesota Department of Education comply with Minnesota Statutes, Chapter 13, in its responses to requests for data dated April 6, 2004, and July 19, 2004?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> The Commissioner notes that although it is his understanding from Mr. Pachl's written request that the classification of the redacted data is not at issue in this opinion, MDE properly redacted the data, which are classified as private pursuant to Minnesota Statutes, section 13.32. </p><p> Pursuant to section 13.03, subdivision 3 (f): </p><p class="opinion_quote"> If the responsible authority or designee determines that the requested data is classified so as to deny the requesting person access, the responsible authority or designee shall inform the requesting person of the determination <i>either orally at the time of the request, or in writing as soon after that time as possible, and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based</i>. Upon the request of any person denied access to data, the responsible authority or designee shall certify in writing that the request has been denied and cite the specific statutory section, temporary classification, or specific provision of federal law upon which the denial was based. [Emphasis added.] </p><p> Ms. Anderson stated that this statutory provision has no application to Mr. Pachl's initial data request. The Commissioner respectfully disagrees. Section 13.03, subdivision 3(f), states that a government entity must provide the legal basis for denying access to data, upon receipt of the request, or as soon as possible thereafter. That requirement applies to situations like this one, in which a government entity must redact otherwise public data. The purpose of the requirement in section 13.03, subdivision 3(f), is so that an entity provides a data requestor with as much information as possible about why certain data may not be accessible. The data requestor then can determine if s/he has a basis upon which to contest the entity's determination. </p><p> Accordingly, upon determining that it would need to redact data in order to respond properly to Mr. Pachl's April 2004 request, MDE should have so informed him, and should have cited to him the legal basis for redacting the data. Had MDE done so, Mr. Pachl would not have needed to make his subsequent request. </p><p> Ms. Anderson stated that in response to Mr. Pachl's July request, MDE had to take numerous actions to determine, in essence, how the redacted data are classified. MDE should have done that at the time it was preparing its response to his initial request, and should have made and preserved a record of that determination. (See section 15.17.) Ms. Anderson did not state any reason that the data might have changed classification subsequent to Mr. Pachl's initial request for those data. </p><p> Also, Mr. Pachl asked MDE to provide the legal basis for the redaction on July 19, 2004; MDE responded in a letter dated August 20, 2004. Given that MDE ought to have determined the classification of the redacted data in April 2004, the Commissioner does not believe it was reasonable for MDE to take four and one-half weeks to respond to Mr. Pachl's July 2004 request. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue raised by Mr. Pachl is as follows: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">The Minnesota Department of Education did not comply with Minnesota Statutes, Chapter 13, in its responses to requests for data dated April 6, 2004, and July 19, 2004. </td></tr></tbody></table><br /><p> Signed: </p><p> Kent Allin <br /> Commissioner </p><p class="date"> Dated: October 13, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2672132665012022-01-19T19:25:41Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-268000" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-10-08T15:14:43ZDid the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to an August 4, 2004, request to inspect certain data? October 8, 2004; City of Warren36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On September 1, 2004, IPAD received a letter dated August 30, 2004, from Elden Elseth. In his letter, Mr. Elseth asked the Commissioner to issue an advisory opinion regarding his access to certain data that the City of Warren maintains. </p><p> In response to Mr. Elseth's request, IPAD, on behalf of the Commissioner, wrote to Robert Brooks, the City Clerk. The purposes of this letter, dated September 2, 2004, were to inform him of Mr. Elseth's request and to ask him to provide information or support for the City's position. On September 22, 2004, IPAD received a response, dated September 21, 2004, from Mr. Brooks. </p><p> A summary of the facts as Mr. Elseth provided them is as follows. In a letter dated August 4, 2004, Mr. Elseth wrote to Mr. Brooks: </p><p class="opinion_quote"> I would request access for purposes of inspection all public data which the City of Warren has which would show the amounts of funding which have been guaranteed by the State of Minnesota (including the Minnesota Department of Natural Resources) and the Federal Government for the above flood project [the PL 83-566 flood reduction project for the Warren, MN area]. I would also request for purposes of inspection documentation showing the amount of funds which will be paid through local real estate taxes for the above project. </p><p> In his opinion request, Mr. Elseth wrote that he hand delivered the data request to the City on August 4, 2004. He further stated, To date, over three weeks later, there has been no response of any kind by the City of Warren in regard to my request. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Elseth asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to an August 4, 2004, request to inspect certain data?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) </p><p> In his comments to the Commissioner, Mr. Brooks wrote, The City has sent the attached letter to Mr. Elseth regarding a time for him to review documents. This should be considered our response to his request to you. We are attempting to set up a meeting. </p><p> Mr. Brooks' letter to Mr. Elseth is dated September 17, 2004. It states: </p><p class="opinion_quote"> This is to notify you that the documents in your request of August 4th, 2004 are ready for your review and can be reviewed at City Hall from 9 A.M. to Noon on September 23rd, 2004. If additional time is needed, a time can be arranged on the 23rd. </p><p> Mr. Brooks further notified IPAD that Mr. Elseth was unable to review the data on September 23, 2004, and that, as of September 22, the inspection date had been rescheduled for September 29. </p><p> As stated above, when an individual requests access to data of which s/he is not the subject, government entities must respond within a reasonable time. Here, Mr. Elseth delivered his request to the City on August 4, 2004. The City did not communicate with Mr. Elseth about his request until September 17, 2004. In the Commissioner's opinion, this is not timely. If the City and Mr. Elseth have not yet set up a time for him to inspect the data, the City promptly should contact him and do so. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Elseth raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Warren did not comply with Minnesota Statutes, Chapter 13, in responding to an August 4, 2004, request to inspect certain data. </td></tr></tbody></table><br /><p> Signed: </p><p> Kent Allin <br /> Acting Commissioner </p><p class="date"> Dated: October 8, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2680002022-01-19T19:25:40Z266258266262266272266297266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267252" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-09-16T15:15:43ZDid Independent School District 833, South Washington County, comply with Minnesota Statutes, Chapter 13, in responding to a March 2, 2004, request for access to data?September 16, 2004; School District 833 (South Washington County)36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On August 12, 2004, IPAD received a letter dated August 10, 2004, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding his/her access to certain data that Independent School District 833, South Washington County, maintains. </p><p> In response to X's request, IPAD, on behalf of the Commissioner, wrote to John Regan, the Superintendent of the District. The purposes of this letter, dated August 17, 2004, were to inform him of X's request and to ask him to provide information or support for the District's position. On September 9, 2004, IPAD received a response, dated same, from Mark Porter, Director of Legal Services for the District. </p><p> A summary of the facts is as follows. In letters dated March, 2, 2004, sent to both Superintendent Regan and Mr. Porter, X wrote: </p><p class="opinion_quote"> [Pursuant to Minnesota Statutes, Chapter 13] I am requesting access to, all legal data documenting all legal fees and expenses spent in any manner pertaining to my [child] by Washington County, School District 833. </p><p> In a letter dated March 11, 2004, Mr. Porter responded: </p><p class="opinion_quote"> ...My review of the documentation I have available indicates that the South Washington County Schools paid a total of $50,481.37 in legal fees and expenses to prepare and defend itself in the special education due hearing you requested to contest the IEP's of your [child]. </p><p class="opinion_quote"> If you would like additional information regarding this matter I can provide the actual bills received, but I will have to take the time to redact any and all attorney-client privileged information contained therein. </p><p> In a letter dated July 2, 2004, X wrote to Mr. Porter: </p><p class="opinion_quote"> On March 2, 2004 I made a request in accordance with [Chapter13]. In your response to my letter you stated you would need time to redact any and all attorney-client privileged information contained there in [sic]. I am again, in accordance with [Chapter 13], at this time requesting access to all legal data documenting all legal fees and expenses spent in any manner pertaining to my [child] by Washington County School District 833 to present date. And that you proceed in a manner that will allow me access to all information requested. </p><p class="opinion_quote"> Please inform me...as to the date in which all documentation pertaining to my request will be ready for review. </p><hr /><br /><h2> Issue: </h2><p> In X's request for an opinion, s/he asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did Independent School District 833, South Washington County, comply with Minnesota Statutes, Chapter 13, in responding to a March 2, 2004, request for access to data?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.04, when an individual requests access to data of which s/he is the subject, the government entity is required to respond within ten working days. </p><p> Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her minor child. </p><p> In his comments to the Commissioner, Mr. Porter wrote: </p><p class="opinion_quote"> The District acknowledges a De minimis failure to comply in a timely manner with the request of [X], however, the measure of non-compliance should be from [X's] letter dated July 2, 2004...not [X's] letter dated March 2, 2004... </p><p class="opinion_quote"> Following receipt of [X's] request for documentation of 'all legal fees and expenses spent in a manner pertaining to my [child]' on March 2, 2004, in a letter dated March 11, 2004...the District provided a summary of legal fees and expenses indicating a total expenditure of $50, 481.37. In addition, in this same letter the District stated, 'If you would like additional information regarding this matter I can provide the actual bills received, but I will have to take the time to redact any and all attorney-client privileged information contained therein.' The District received no further correspondence from [X] until [X's] letter of July 2, 2004. </p><p class="opinion_quote"> On or about August 17, 2004, in response to [X's] request of July 2nd, the District provided a complete copy of legal fees and expenses...The District did experience delays in the provision of this data due primarily to summer vacation schedules and time necessary to review the data provided as to inclusion of attorney-client privileged information. Due to the unintended delays the District did not seek any reimbursement or costs associated with the data. </p><p> In previous opinions with similar facts, the Commissioner has opined that when a data subject seeks data about him/herself, the entity, within ten working days, must either provide the data or inform the requestor that the data do not exist. Here, in a letter dated March 2, 2004, X requested access to certain data from the District. Although it is not clear whether X was asking to inspect or to obtain copies, X stated that s/he was making the request in accordance with Chapter 13. Thus, the District's obligation was to attempt to clarify whether X wanted to inspect or obtain copies and then to make the data available for X to inspect or provide X with copies of the data within ten days. However, Mr. Porter's response was to review the data himself and provide X with a total dollar expenditure amount. This was not an appropriate or timely response to X's request. </p><p> An additional note is in order. In his comments to the Commissioner, Mr. Porter noted that attached to an August 17, 2004, letter to X from the District were detailed billing statements provided by the School District's legal counsel for services rendered to defend the School district in the special education due process hearing [X] requested to contest [X's child's] IEP. Regardless of whether these data are responsive to X's March 2, 2004, request - and the Commissioner does not know - X made it clear in the July 2, 2004, letter that s/he wanted to review (inspect) the data, not obtain copies of the data. If X still wishes to inspect the data s/he requested on July 2, 2004, the District promptly should arrange a time for X to do so. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that X raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Independent School District 833, South Washington County, did not comply with Minnesota Statutes, Chapter 13, in responding to a March 2, 2004, request for access to data. </td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: September 16, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2672522665152666682022-01-19T19:25:40Z266258266271266259266520266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267352" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-09-16T15:14:43ZIs the Eagan Charter Commission subject to Minnesota Statutes, Chapter 13? If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data? If the answer to question 1 is yes, is the Eagan Charter Commission in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)? If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, when it refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting? September 16, 2004; Eagan Charter Commission36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On August 19, 2004, IPAD received a letter dated August 18, 2004, from Paul Bakken. In his letter, Mr. Bakken asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Eagan Charter Commission maintains.</p> <p>In response to Mr. Bakken's request, IPAD, on behalf of the Commissioner, wrote to Betty Fedde, the Chair of the Commission. The purposes of this letter, dated August 23, 2004, were to inform her of Mr. Bakken's request and to ask her to provide information or support for the Commission's position. On August 31, 2004, IPAD received a response, dated same, from Jon Felde, Secretary of the Commission.</p> <p>Also in a letter dated August 23, 2004, IPAD invited the City of Eagan to provide comments. Michael Dougherty, an attorney representing the City, responded in a letter dated August 31, 2004.</p> <p>A summary of the facts as Mr. Bakken provided them is as follows. In a letter dated July 16, 2004, Mr. Bakken wrote to Mr. Felde:</p> <p class="opinion_quote">Pursuant to [Chapter 13], I write to request access to all organizational documents, meeting minutes, videotape records of meetings, financial records, and end of year reports of the Eagan Charter Commission. I also request access to any studies or research materials that the Charter Commission has used to support its decision to submit a charter to a vote in Eagan.</p> <p class="opinion_quote">Upon inspection, I may wish to obtain copies of selected documents. I will make arrangements with you to copy all such items at my expense, and under your supervision, if required....</p> <p>Mr. Felde responded in a letter dated July 30, 2004. He wrote:</p> <p class="opinion_quote">[At an earlier point in time] the Eagan City Attorney stated that the Eagan Charter Commission is a part of the District Court, not a part of the City....Under that interpretation, the Charter Commission is not subject to [Chapter 13].</p> <p>Mr. Felde also informed Mr. Bakken that some of the documents Mr. Bakken requested were located at various locations, including the League of Minnesota Cities, a local library, the City of Eagan, and the District Court in Hastings. Mr. Felde further wrote:</p> <p class="opinion_quote">I will assemble other Charter Commission records for your review at our next scheduled Charter Commission meeting....If you would like copies of any of the documents, identify them from among those we make available, and we will copy them for you according to the standard copying charges established by the District Court....</p> <p>In his opinion request, Mr. Bakken noted that he attended the Commission meeting to inspect the data the Commission maintains:</p> <p class="opinion_quote">[At the Commission meeting] I also asked if the Commission had a copy of its data practices procedures available. The Commission does not have a written data practices procedure document.</p> <p class="opinion_quote">I then asked if I could bring in the portable copy machine that I had out in my car and use it to make copies of documents. This request was refused on the grounds that this activity would be disruptive to the meeting. I next asked if I could make digital photographs of records with a camera that I had on my person. Again, I was told that this would not be permitted because it would be too disruptive....</p> <hr /> <br /> <h2>Issues:</h2> <p>In his request for an opinion, Mr. Bakken asked the Commissioner to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Is the Eagan Charter Commission subject to Minnesota Statutes, Chapter 13?</li> <li>If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data?</li> <li>If the answer to question 1 is yes, is the Eagan Charter Commission in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</li> <li>If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, when it refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <h2>Issue 1:</h2> <p><em>Is the Eagan Charter Commission subject to Minnesota Statutes, Chapter 13?</em></p> <p>Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use.</p> <p>Section 13.02, subdivision 11, defines political subdivision as ...any board, commission, district or authority created pursuant to law, local ordinance or charter provision.</p> <p>In his comments to the Commissioner, Mr. Felde wrote:</p> <p class="opinion_quote">The position of the Commission is that it is a part of the City. The City has taken a contrary position and has insinuated that the Commission is part of the judiciary. A dubious alternative position is that the Charter Commission is an independent political entity. This is a threshold issue. Under the Charter Commissions [sic] interpretation, [Chapter 13] does apply to the Commission as part of the City in the same way that [Chapter 13] applies to the City's other boards and commissions. Requests for the inspection of data made under [Chapter 13] should be directed to the City's responsible authority. It is only through an effort to provide access to data by the Commission that I responded to Mr. Bakken. In hindsight, [Mr.] Bakken should have been directed to the City of Eagan.</p> <p>Mr. Dougherty, in his comments to the Commissioner, wrote:</p> <p class="opinion_quote">...Having reviewed the four issues that the Commissioner will address in its advisory opinion it does not seem like the City can offer much assistance in the determination. While the question of whether the Charter Commission is required to comply with Chapter 13 of the Minnesota Statutes may affect the residents of the City and others, the decision should not impact the City of Eagan's administration....</p> <p class="opinion_quote">The material you provided includes my written opinion of October 12, 2001 regarding the Charter Commission together with a letter from John [sic] Felde...to Paul Bakken... Contrary to the statements made in Mr. Felde's letter, my opinion neither expressly nor by implication asserted that the Eagan Charter Commission is part of the district court. The opinion is limited to addressing the structure of the organizations as being distinct from each other, essentially recognizing the existence of two entities.</p> <p>As stated above, for purposes of Chapter 13, a political subdivision includes a commission created pursuant to law. Minnesota Statutes, Chapter 410, contains the enabling legislation that grants charter commissions their powers and responsibilities. Thus, it is the Commissioner's conclusion that a charter commission, such as the Eagan Charter Commission, is a political subdivision and therefore is subject to the requirements of Chapter 13.</p> <h2>Issue 2:</h2> <p><em>If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data?</em></p> <p>Pursuant to Minnesota Statutes, section 13.03, when a government entity, including a political subdivision, receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)</p> <p>In addition, section 13.03, subdivision 3(a), states, Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places...</p> <p>In a letter dated July 16, 2004, Mr. Bakken made a request to inspect certain data. Mr. Felde advised Mr. Bakken that Mr. Bakken could review some of the data at the next scheduled Charter Commission meeting, August 11, 2004, at 6:30 p.m. In his opinion request, Mr. Bakken stated that regular meetings of the Commission are held only once a month. Based on the reasonable times and places language in section 13.03, subdivision 3(a), if this is the only time the Commission allows individuals to inspect data it maintains, the Commission is not in compliance with Chapter 13.</p> <p>Mr. Felde also advised Mr. Bakken that certain of the data he requested were available at the League of Minnesota Cities, a local library, the District Court in Hastings, and the City of Eagan. Thus, it appears the Commission does not maintain some of the types of data Mr. Bakken requested. If so, the Commission may be in violation of Minnesota Statutes, section 15.17, the Official Records Act. Section 15.17, subdivision 1, states, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13.</p> <p>At least some of the data Mr. Bakken requested, e.g., meeting minutes, bylaws, annual reports, and financial reports, appear to document decisions made by the Commission. Such documentation constitutes an official record, must be maintained pursuant to the provisions of Minnesota Statutes, section 138.17, and is subject to the access provisions of Chapter 13.</p> <p>The Commissioner cannot state definitively that the Commission did not comply with Chapter 13 in responding to Mr. Bakken's request. However, it appears the Commission may be in violation of section 15.17 and, if the only time the Commission permits inspection of data is at its monthly meetings, the Commission needs to allow more frequent inspection opportunities.</p> <h2>Issue 3:</h2> <p><em>If the answer to question 1 is yes, is the Eagan Charter Commission in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</em></p> <p>Minnesota Statutes, section 13.03, subdivision 2(b), states:</p> <p class="opinion_quote">The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.</p> <p>In his opinion request, Mr. Bakken wrote, I also asked if the Commission had a copy of its data practices procedure document. The Commission does not have a written data practices procedure document.</p> <p>Mr. Felde, in his comments to the Commissioner, wrote:</p> <p class="opinion_quote">As stated before, the Charter Commission is a part of the City of Eagan. As such, it does not need to prepare its own public access procedures. If the Commissioner is of the opinion that the Commission is an independent political entity, then the Commission has not complied with Minn. Stat. section13.03, subd. 2(b), because it has not prepared public access procedures. The only mitigating factors that I can raise are that the Commission did not believe that it is independent of the City, was not trained in [Chapter 13], and therefore, did not know that public access procedures are required.</p> <p>The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. According to Mr. Felde, the Commission has not prepared its public access procedures and, therefore, is not in compliance with Chapter 13. The Commissioner urges the Commission to prepare the public access procedures as soon as possible.</p> <h2>Issue 4:</h2> <p><em>If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, when it refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting?</em></p> <p>In his opinion request, Mr. Bakken wrote:</p> <p class="opinion_quote">I then asked if I could bring in the portable copy machine that I had out in my car and use it to make copies of the documents. This request was refused on the grounds that this activity would be disruptive to the meeting. I next asked if I could make digital photographs of records with a camera that I had on my person. Again, I was told that this would not be permitted because it would be too disruptive....</p> <p class="opinion_quote">Finally, I waited until adjournment of the meeting and asked again to make digital photos. I pointed out that I wouldn't be disrupting the meeting at this time, given that the meeting had adjourned. After some discussion, I was allowed to make photographs of 6 pages. Because the meeting ran until well after 8:00 PM, and the building in which the meeting was held closes at 8:30 PM, I did not have sufficient time in which to organize the material and take photos of a larger selection of documents.</p> <p>Mr. Felde, in his comments to the Commissioner, wrote:</p> <p class="opinion_quote">With the Commission's consent, [Mr.] Bakken made digital photographs of all of the documents that he selected. The Minnesota Attorney General has issued an opinion under the Open Meeting Law that open meetings may be taped by a member of the public so long as the conduct does not disturb the meeting. That is the same reasonable restriction placed on [Mr.] Bakken. [Mr.] Bakken chose not to retrieve his portable copying machine from his car. As he did with his digital camera, [Mr.] Bakken could have made copies on his portable machine in a way that would not disturb the meeting. Since [Mr.] Bakken was not refused the use of his portable copying machine or digital camera in making copies of data, this issue is moot.</p> <p>The Commissioner is unable to resolve the factual dispute regarding whether the Commission did or did not permit Mr. Bakken to make copies with his portable copy machine or his digital camera.</p> <p>However, the Commissioner makes the following comments. As stated above, section 13.03, subdivision 3(a), requires government entities to allow individuals to inspect and copy government data at reasonable times and places. The Commissioner previously has opined that it is permissible for an individual to use a personal electronic device, i.e., a tape recorder or a scanner, either to aid in inspection or to make copies of data. (See Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267086" title="01-086" target="_blank">01-086</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267645" title="04-051" target="_blank">04-051</a>.) Similarly, it would be appropriate for Mr. Felde to use a portable copy machine or a digital camera to make his own copies of data as long as such use is reasonable.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issues that Mr. Bakken raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The Eagan Charter Commission is subject to Minnesota Statutes, Chapter 13.</li> <li>The Commissioner cannot determine, with certainty, if the Eagan Charter Commission complied with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data.</li> <li>The Eagan Charter Commission is not in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).</li> <li>The Commissioner cannot determine, with certainty, if the Eagan Charter Commission refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Brian J. Lamb <br /> Commissioner</p> <p class="date">Dated: September 16, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2673522670062662532668882670622664262665212022-01-19T19:25:39Z266258266259266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266756" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-09-13T15:14:43ZDid the City of Warren comply with Minnesota Statutes, Chapter 13, in assessing a fee when the data requestor asked to review certain data?September 13, 2004; City of Warren36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 30, 2004, IPAD received a letter, dated same, from Elden Elseth. In his letter, Mr. Elseth asked the Commissioner to issue an advisory opinion regarding his access to certain data that the City of Warren maintains. </p><p> In response to Mr. Elseth's request, IPAD, on behalf of the Commissioner, wrote to Robert Brooks, City Clerk. The purposes of this letter, dated July 30, 2004, were to inform him of Mr. Elseth's request and to ask him to provide information or support for City's position. On August 11, 2004, IPAD received a response, dated same, from Mr. Brooks. </p><p> A summary of the facts is as follows. In a letter dated July 5, 2004, Mr. Elseth wrote to Mr. Brooks. Mr. Elseth asked to review the Data Practices Policy of the City of Warren. He also asked to review the following data: </p><p class="opinion_quote"> ...any and all documents relating to the rural water line in the area northeast of Warren sometimes referred to as the Great Eastern waterline which is owned and operated by the City of Warren, MN....I would also request to review documents you have in regard to the dike sometimes referred to as the Yutrzenka dike which is located east of the Warren golf course area along the Snake River and the permit you have for construction of that dike. </p><p> Mr. Brooks responded in a letter dated July 6, 2004: I am in receipt of your letter dated July 5, 2004 and have forwarded it on to our Legal Counsel. I will contact you when I have information for you. </p><p> Mr. Elseth wrote back in a letter dated July 9, 2004 and reiterated his request. He also wrote, If there is a delay in providing access to review data, at minimum you should be immediately able to provide me your policy and procedure as to data access. To further clarify, I immediately request the <strong>written form of the public access procedure of the City of Warren, MN .</strong> (Emphasis provided.) </p><p> Mr. Brooks responded in a letter dated July 12, 2004. He wrote: </p><p class="opinion_quote"> ...I have attached the Cities [sic] Request for Information Policy....Due to the fact the request is for a type of information and is not a specific document, it will take some time to compile the information for your review. It will also entail a significant amount of employee time to fill the request. We will attempt to complete the task by July 20th. I will notify you on that date if it will take additional time or if the data is ready for your review. </p><p class="opinion_quote"> It is estimated that the task will take four hours at a billable rate $21 per hour or a total of $84.... </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Elseth asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the City of Warren comply with Minnesota Statutes, Chapter 13, in assessing a fee when the data requestor asked to review certain data?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) </p><p> In addition, section 13.03, subdivision 3(a) states, Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places...If a person requests access for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data. </p><p> In his comments to the Commissioner, Mr. Brooks wrote: </p><p class="opinion_quote"> We have been advised that inspection of data must be permitted without charge under Minnesota law and that charges may be imposed only when copies are requested. Accordingly, the City will make the documents requested by Mr. Elseth available for inspection at a mutually convenient time, free of charge. </p><p> As stated above, pursuant to Chapter 13, individuals can inspect government data free of charge. Therefore, the City's July 12, 2004, response to Mr. Elseth's request was not appropriate. If the City has not yet arranged for Mr. Elseth to inspect the data, it should so promptly. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Elseth raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The City of Warren did not comply with Minnesota Statutes, Chapter 13, in assessing a fee when the data requestor asked to review certain data. </td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: September 13, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2667562667552022-01-19T19:25:38Z266258266283266283266282266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267582" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-31T15:14:43ZDid the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, September 16, 2002 and December 5, 2002? Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002? Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002? Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002? Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002?August 31, 2004; Cannon Falls Township Board36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On July 14, 2004, IPAD received a letter, dated June 23, 2004, from Kenneth Brown and Robert Banks. In their letter, Messrs. Brown and Banks asked the Commissioner to issue an advisory opinion regarding whether the Board of Supervisors in Cannon Falls Township (the Board), had complied with various provisions of the Open Meeting Law, Minnesota Statutes, Chapter 13D, on several different dates. Messrs. Brown and Banks submitted the $200.00 fee required by section 13.072.</p> <p>On July 15, 2004, IPAD wrote to the Chair of the Cannon Falls Township Board. In its letter, IPAD informed the Chair of Messrs. Brown and Bank's request and gave the Board, or any of its members, an opportunity to explain the Board's position. The Board presented its position in a letter dated July 27, 2004, from its attorney, Michael E. Ojile.</p> <p>A summary of the facts presented by Messrs. Brown and Banks is as follows.</p> <p>Messrs. Brown and Banks own property in Cannon Falls Township. On March 12, 2002, David Hvistendahl, an attorney representing Messrs. Brown and Banks, sent a notice to Harvey Glaess, the Cannon Falls Township Clerk. In that notice, Mr. Hvistendahl requested that Messrs. Brown and Banks be notified of special and regular township meetings that were to address the topics of feedlot permits and set backs from residential properties and feedlot permits issued within a specified geographic area. After this demand for notice was sent to Mr. Glaess, the Board held special meetings on July 8, July 31, September 16, and December 5, 2002, where feedlot permits and set backs were on the agenda. Messrs. Brown and Banks did not receive notice of the special meetings.</p> <p>A special meeting was also held on either June 15 or June 17, 2002, regarding whether Mr. Ojile's representation of both the Board and Supervisor Hovel in his role as a feedlot operator was a conflict of interest. There was no notice of the meeting in the newspaper and Messrs. Brown and Banks did not receive notice of the special meeting.</p> <p>In addition, the Board held a special meeting on August 27, 2002, where the posted notice did not contain a date found on the calendar and where a backdated notice for the meeting was posted on the same day as the meeting was held.</p> <p>The Board also changed the regular meeting of the Board from August 14, 2002, to August 7, 2002. The notice of the change in the meeting date appeared in the Cannon Falls <em>Beacon</em> newspaper on August 8, 2002, the day after the meeting. Messrs. Brown and Banks did not receive notice of this change in the regular meeting date.</p> <p>Mr. Glaess, the Town Clerk until October 31, 2002, provided an affidavit that indicates that notice requirements were met for the meetings listed above. Mr. Glaess also states that two notices for meetings on August 27, 2002, were posted and blew off of, or were removed from the Township bulletin board. Mr. Glaess states that the notices were re-posted on August 27, 2002.</p> <hr /> <br /> <h2>Issues:</h2> <p>In their request for an opinion, Messrs. Brown and Banks asked the Commissioner to address the following issues:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, September 16, 2002 and December 5, 2002?</li> <li>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002?</li> <li>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002?</li> <li>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002?</li> <li>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002?</li> </ol> </td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>The parties have presented a preliminary issue that needs to be resolved in this advisory opinion. Specifically, the Commissioner needs to determine what Mr. Hvistendahl's March 12, 2002, letter requesting notice of regular and special meetings for Messrs. Brown and Banks covers.</p> <p>The letter asks that Messrs. Brown and Banks be notified when the following topics are included in a notice of a regular or special meeting of the Board:</p> <p class="opinion_quote">1. Feedlot permits and set backs from residential properties; <br /> 2. Feedlot permits issued within Cannon Falls' urban expansion district or within two miles of the city limits;</p> <p>Messrs. Brown and Banks believe that they had requested notice of any meeting at which feedlot permits or set backs from residential properties were on the agenda. The Board has taken the position that it is only required to give notice to Messrs. Brown and Banks when feedlot permits are <u>issued</u> by the Board and not every time the words feedlot, setbacks or distance are part of a discussion in a public meeting. (emphasis added)</p> <p>Citizens are entitled to receive notice of <em>special</em> meetings of a public body covered by the Open Meeting Law, Minnesota Statutes, Chapter 13D. Specifically, section 13D.04, subdivision 2 (b) says that the notice of special meeting shall be posted and mailed or otherwise delivered to each person who has filed a written request. Posting and mailing or delivery must occur at least three days before the date of the special meeting. There is no similar provision for regular meetings.</p> <p>Section 13D.04, subdivision 2 (d) says that a person who files a request for notice of special meetings may limit the request to notification of meetings concerning specific topics and the public body is required to send only those notices of special meeting that refer to the specified topic(s). Messrs. Brown and Banks have chosen to limit their demand for notice of special meetings to the topics listed above.</p> <p>The Minnesota Supreme Court has found that the provisions of the Open Meeting Law are to be interpreted in favor of the public. The Court said:</p> <p class="opinion_quote">The Open Meeting Law serves several purposes:</p> <p class="opinion_quote">(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public the opportunity to present its views to the [public body].</p> <p class="opinion_quote"><em>St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs.</em> 332 N.W. 2d 1, 4, (Minn. 1983) (citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. [footnote omitted]</p> <p class="opinion_quote">Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. <em>State by Archabal v. County of Hennepin</em>, 505 N.W. 2d 294, 297 (Minn. 1993); see <em>St. Cloud Newspapers</em>, 332 N.W. 2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision-making process of public bodies. )</p> <p><em>Prior Lake American v. Mader</em>, 642 N.W. 2d 729, 735 (Minn. 2002).</p> <p>Applying the rule that the Open Meeting Law is construed in favor of public access, the Commissioner finds that the Board's interpretation of the content of the March 12, 2002, letter requesting notice of special meetings is too narrow. Messrs. Brown and Banks requested notice of special meetings where feedlot permits <em>or setbacks</em> were to be discussed. As is required by section 13D.04, subdivision 2, and described in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267471" title="04-004" target="_blank">Advisory Opinion 04-004</a>, the notice of special meeting must include the topics to be discussed at the meeting. Therefore, the Board must provide Messrs. Brown and Banks with notice when a special meeting is to cover feedlot permits or setbacks.</p> <h2>Issue 1:</h2> <p><em>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, September 16, 2002 and December 5, 2002?</em></p> <p>The statutory language governing notices for special meetings is found in section 13D.04, subdivision 2. The pertinent part of that subdivision says:</p> <p class="opinion_quote">Subd. 2.</p> <p class="opinion_quote">Special meetings.</p> <p class="opinion_quote">(a) For a special meeting, except an emergency meeting or a special meeting for which a notice requirement is otherwise expressly established by statute, the public body shall post written notice of the date, time, place, and purpose of the meeting on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room. <br /> (b) The notice shall also be mailed or otherwise delivered to each person who has filed a written request for notice of special meetings with the public body. This notice shall be posted and mailed or delivered at least three days before the date of the meeting. <br /> (c) As an alternative to mailing or otherwise delivering notice to persons who have filed a written request for notice of special meetings, the public body may publish the notice once, at least three days before the meeting, in the official newspaper of the public body or, if there is none, in a qualified newspaper of general circulation within the area of the public body's authority. (d) A person filing a request for notice of special meetings may limit the request to notification of meetings concerning particular subjects, in which case the public body is required to send notice to that person only concerning special meetings involving those subjects.</p> <p>For each of the meetings listed below, the issue is whether Messrs. Brown and Banks received notice of a special meeting as outlined in their demand for notice dated March 12, 2002.</p> <p><strong>July 8, 2002</strong></p> <p>The Board held a special meeting on July 8, 2002. None of the parties have provided the Commissioner with a copy of the notice of the special meeting. Messrs. Brown and Banks have provided an affidavit from A. Edward Bailey who attended the meeting. Mr. Bailey's affidavit includes a copy of the agenda to the meeting that refers to the Olson appeal. Messrs. Brown and Banks have provided the Commissioner with copies of the court documents from Mr. Olson's attorneys to the Goodhue County Board of Commissioners about an appeal to the Minnesota Court of Appeals regarding a conditional use permit for the expansion of a feedlot.</p> <p>Mr. Bailey's affidavit indicates that he did not see a public notice for this meeting and did not receive a written notice. Mr. Glaess' affidavit indicates that he did post notice of the special meeting at least three days prior to the meeting, as was his routine. The Commissioner cannot resolve this factual dispute.</p> <p>Its resolution is not needed here, however. What is at issue is whether Messrs. Brown and Banks received notice of the special meeting as was required following their demand of March 12, 2002. The July 8th meeting was held to discuss a court proceeding involving a feedlot. Messrs. Brown and Banks' May 12, 2002, demand requested notice when feedlots were a topic at a special meeting. Messrs. Brown and Banks state that they did not receive a notice for the July 8th meeting. The Board has not complied with the requirements of section 13D.04, subdivision 2(b) and (c) because they did not provide notice of the July 8th special meeting when the topic of feedlots was to be discussed.</p> <p><strong>July 31, 2002</strong></p> <p>The Board met with several individuals at the Office of the Goodhue County Attorney on July 31, 2002. Stephen Betcher, the Goodhue County Attorney, convened the meeting at the request of the Goodhue County Commissioners to discuss the Olson appeal. (See July 8, 2002, meeting above.) Messrs. Brown and Banks have provided the Commissioner with a Memorandum written by Mr. Betcher that summarized the meeting and indicates that feedlot setbacks were discussed.</p> <p>Messrs. Brown and Banks did not receive notice of this special meeting. They also indicate that there are no Board minutes and no notice of the meeting. Mr. Glaess' affidavit indicates that he did post notice of the special meeting at least three days prior to the meeting, as was his routine. The Commissioner cannot resolve this factual dispute.</p> <p>Its resolution is not needed here, however. What is at issue here is whether Messrs. Brown and Banks received notice of the special meeting as was required following their demand of March 12, 2002. The July 31st meeting was held to discuss the same court proceeding involving a feedlot discussed at the July 8th meeting. Messrs. Brown and Banks' May 12, 2002, demand requested notice when feedlots were on a special meeting agenda. Messrs. Brown and Banks state that they did not receive a notice for the July 31st meeting. The Board has not complied with the requirements of section 13D.04, subdivision 2 (b) and (c) because they did not provide notice of the July 31st special meeting when the topic of feedlots was to be discussed.</p> <p><strong>September 16, 2002</strong></p> <p>The minutes of the special meeting held on September 16, 2002, indicate that there were two actions taken. The first related to the Olson appeal which has been previously found to be covered by the demand for notice filed by Messrs. Brown and Banks. The second is to rescind the permit for Mr. Banks to build his house because it was too close to a feedlot and so violated setback requirements.</p> <p>The Board has provided the Commissioner with a copy of the notice of special meeting that is dated September 13, 2002. Again, the issue is not whether the Board posted notice, but whether Messrs. Brown and Banks received notice according to their demand. As noted above, the Olson appeal is about a feedlot and so falls within their demand. They should have received notice of the special meeting. In addition, the rescission of Mr. Bank's building permit involved the distance between Mr. Banks' home site and a feedlot, otherwise known as a setback. This topic also falls with the demand for notice made by Messrs. Brown and Banks. They did not receive notice of the September 16th meeting. Because they did not receive notice according to their demand, the Board has not complied with the requirements of section 13D.04, subdivision 2 (b) and (c).</p> <p><strong>December 5, 2002</strong></p> <p>The Board met on December 5, 2002, with the Township Planning Commission to begin work on updating the township zoning ordinance. Neither party provided the Commissioner with a copy of the notice for this special meeting. The Commissioner assumes that because feedlot permits have been the subject of other special meetings, feedlots and setbacks from feedlots would be discussed at a meeting involving changes to the township zoning ordinance. In addition, the minutes indicate that the Board received information from the Goodhue County feedlot officer.</p> <p>If the Commissioner's assumption is correct about the topic of the December 5th special meeting, then feedlots and setbacks were discussed. These topics were included in the March 12, 2002, demand for notice of special meetings filed by Messrs. Brown and Banks. They should have received notice of the special meeting on December 5th.</p> <p>If the Commissioner's assumption about the topic of the December 5th special meeting is not correct, then the Board did not have an obligation to give Messrs. Brown and Banks notice of the special meeting.</p> <p>The Commissioner does not have enough information to be able to determine if the Board has met the requirements of section 13D.04, subdivision 2 (b) and (c) for the special meeting held on December 5, 2002.</p> <h2>Issue 2:</h2> <p><em>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002?</em></p> <p>According to the Board, two notices of special meeting were posted on August 21, 2002. The first involved the Olson appeal, and the second involved an inspection of Mr. Banks' property and a discussion of his building permit. The notices stated that the date of the meeting was Tuesday, August 29th. In 2002, August 29th fell on a Thursday. The Board argues that these were effective notices of special meetings to be held on Tuesday, August 27th.</p> <p>There is nothing explicit in the Open Meeting Law that addresses this issue. However, as has been noted above, the purpose of the Open Meeting Law is to allow the public to observe elected bodies like the Board as they do their work. See <em>Prior Lake American</em> at 735. The public cannot observe the Board at work if the posted notice is for a date that does not exist on the calendar. Therefore, the Board did not comply with the requirements of section 13D.04, subdivision 2 because the notices did not contain a valid date.</p> <p>There is an additional issue presented by this meeting. Messrs. Brown and Banks suggest that the meeting notices were not prepared until the day of the meeting. The Board indicates that the notices that had been posted on August 21st were either removed or blew away. Again, there is nothing explicit in the Open Meeting Law that addresses this issue. However, section 13D.04, subdivision 2 (a) says that one way to give notice of a special meeting is to post the notice on the principal bulletin board of the public body. If the Board's principal bulletin board is one where notices can either be removed or blow away, then the Board is unable to meet the requirements of the law. The Commissioner encourages the Board to find a principal bulletin board where the notices are protected, such as by glass and a lock, so that the Board controls what is posted, not the public or Mother Nature.</p> <h2>Issue 3:</h2> <p><em>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002?</em></p> <p>The Board was scheduled to have a regular meeting on August 14, 2002. The Board determined that it needed to move that regular meeting to August 7, 2002. Section 13D.04, subdivision 1 says, in pertinent part:</p> <p class="opinion_quote">If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting.</p> <p>Section 13D.04, subdivision 2 governs special meetings and appears above. It requires posting of the notice of special meeting, mailing notice to those who have requested notice of special meetings or publication, at least three days before the meeting, of a notice in the official newspaper of the public body.</p> <p>The Board posted the meeting on the bulletin board according to Mr. Glaess' affidavit. The Commissioner was not, however, provided with any information about what was contained in the posted notice of the meeting. As was found in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267471" title="04-004" target="_blank">04-004</a>, when a special meeting is noticed, the public body must list the topics for discussion. Unless this is done, there is no way for the public body to honor the demand for notice of special meeting on certain topics. <em>See</em> section 13D.04, subdivision 2 (d).</p> <p>A notice of the meeting was published in the Cannon Falls <em>Beacon</em> on August 8, 2002. No topics for discussion were listed and so the Board did not comply with the content requirements for the notice of the meeting moved to August 7, 2002.</p> <p>It appears that the Board did comply with the requirement to post the notice of meeting. The Board did not comply with the requirements of section 13D.04, subdivision 1 regarding the content of the meeting notice.</p> <h2>Issue 4:</h2> <p><em>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002?</em></p> <p>As has been discussed above, a notice of special meeting must include the topics that are to be discussed. Based on the published notice, the Board did not comply with the requirements of section 13D.04, subdivision 2 (b) and (c).</p> <p>The minutes for the August 7th meeting state that Mr. Ojile made a presentation on setbacks. This suggests that the topic of setbacks should have been included in the meeting notice and the requirement to provide notice to Messrs. Brown and Banks would have been triggered as well.</p> <p>The notice published in the newspaper appeared on the day after the meeting, August 8th, according to the copy of the paper provided by Messrs. Brown and Banks. This publication did not meet the requirements of section 13D.04, subdivision 2 (c) to publish at least three days before the meeting. The publication does not list the topics of to be discussed at the meeting and so does not meet the requirements of section 13D.04, subdivision 2 (b) and (c).</p> <p>The Board did not comply with the requirements of section 13D.04, subdivision 2(b) and (c) when it moved its regular meeting from August 14, 2002, to August 7, 2002.</p> <h2>Issue 5:</h2> <p><em>Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002?</em></p> <p>The information provided by the parties about this meeting is very confusing. Messrs. Brown and Banks have provided minutes of meetings for June 15, June 16, and June 17, 2002. The content of each set of minutes is different. Each is also stamped COPY Cannon Falls Township.</p> <p>The Board's submittal indicates that a meeting was held on June 17, 2002, and that it was properly noticed. The Board also argues that the topic covered by the meeting did not require that Messrs. Brown and Banks receive notice. The Board indicated that there was no meeting on June 15, 2002 and made no statement about the June 16, 2002, meeting.</p> <p>In looking at the minutes dated June 15, 2002, the topic is whether Mr. Ojile has a conflict of interest because he represents the Township and also represents one of its supervisors, Gary Hovel, who runs a feedlot. This topic fits within the demand for notice filed by Messrs. Brown and Banks.</p> <p>Looking at the minutes dated June 17, 2002, the topic is whether a building was sited to meet the setback requirements. This topic is also within the demand for notice filed by Messrs. Brown and Banks.</p> <p>No matter when the meeting was held, Messrs. Brown and Banks should have received notice of the special meeting held in June 2002 based on their demand for notice. The Board has not complied with section 13D.04, subdivision 2 for the meeting held in June 2002.</p> <p>The Commissioner has one final, general comment. The Board provided very few copies of actual meeting notices or postings. The Official Records Act, Minnesota Statutes, section 15.17, requires, in pertinent part, that:</p> <p class="opinion_quote">All officers...of...towns... shall make and preserve all records necessary to a full and accurate knowledge of their official activities.</p> <p>Notices of special meetings and postings demonstrating that the requirements of the Open Meeting Law have been met clearly are official activities of the Board. The Commissioner encourages the Board to keep all necessary records to document future meeting notices and postings so that it can demonstrate to its citizens that it has complied with the Open Meeting Law.</p> <p>Notices of special meetings and postings demonstrating that the requirements of the Open Meeting Law have been met clearly are official activities of the Board. The Commissioner encourages the Board to keep all necessary records to document future meeting notices and postings so that it can demonstrate to its citizens that it has complied with the Open Meeting Law.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue raised by Messrs. Brown and Banks is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox"> <ol> <li>The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, and September 16, 2002. The Commissioner cannot determine if the supervisors were in compliance for the meeting held on December 5, 2002.</li> <li>The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002.</li> <li>The supervisors of Cannon Falls Township met the requirement to post a notice as found in Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002. The Board did not comply with notice requirements of Minnesota Statutes, section 13D.04, subdivision 2.</li> <li>The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002.</li> <li>The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002.</li> </ol> </td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Brian J. Lamb <br /> Commissioner</p> <p class="date">Dated: August 31, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2675822665932662902022-05-12T20:25:10Z266258266271266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267275" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-26T15:14:43ZDid Todd County comply with Minnesota Statutes, Chapter 13, in charging $7 for seven pages (double-sided) of copies of the minutes from three County Board meetings?August 26, 2004; Todd County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On July 19, 2004, IPAD received a letter from Dave Aeikens of the St. Cloud Times. In his letter, Mr. Aeikens asked the Commissioner to issue an advisory opinion regarding Todd County's charge for copies of government data.</p> <p>In response to Mr. Aeikens' request, IPAD, on behalf of the Commissioner, wrote to Tony Haasser, Todd County Coordinator. The purposes of this letter, dated July 21, 2004, were to inform him of Mr. Aeikens' request and to ask him to provide information or support for County's position. On August 3, 2004, IPAD received a response, dated August 3, 2004, from Mr. Haasser.</p> <p>A summary of the facts as Mr. Aeikens provided them is as follows. In his opinion request, Mr. Aeikens wrote:</p> <p class="opinion_quote">On April 6, I requested copies of minutes from the last three Todd county board meetings. The minutes were 14 pages total. I was charged $7 for seven pages of paper that was copied on the front and back.</p> <p class="opinion_quote">This amounts to 50 cents a page for black-and-white copies. This could even be construed as a dollar a page because the county provided me with seven pages of paper, not 14.</p> <p class="opinion_quote">The clerk got a book with the minutes and made copies of minutes from meetings Jan. 6, 12 and 20.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Aeikens asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Todd County comply with Minnesota Statutes, Chapter 13, in charging $7 for seven pages (double-sided) of copies of the minutes from three County Board meetings?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).)</p> <p>In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data.</p> <p>Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>In his comments to the Commissioner, Mr. Haasser wrote:</p> <p class="opinion_quote">...Therefore the case that Mr. Aeikens is inquiring about would follow the policy of Todd County. The inquiry came into the County April 6th to the Chief Deputy Auditor/Treasurer, Peggy Anderson, who handled this one with a fairly standard procedure. The documents are retrieved from the Board Minutes Book, copied and the originals are returned to the Book. The receipt was then prepared and paid and Mr. Aeikens was given his copies. The County policy would be a simple $7.00, $1.00 per page, which Ms. Anderson copied to both sides rather than just one side.</p> <p class="opinion_quote">If the County has to justify the cost of this service, paper and toner would be minimal, past reference is .04 to .05 cents per copy. The rest would be Ms. Anderson's time. The minimal time spent to retrieve, copy, replace, collect payment and produce a two signature receipt would have been approximately 20 minutes [sic] considering the scale that Ms. Anderson is at the County did incur costs equal to or more than the $7.00 charge for this service.</p> <p class="opinion_quote">In the way of more information, several years ago the county reviewed how each department was handling copy/fax requests and discovered some inconsistencies. The departments worked together to establish a fee schedule to make it fair and consistent throughout the County. The County Recorders office was already following MN Statute 357.18 rate of $1.00 per page with a $5.00 minimum for certified copies. The district court who is also housed in the same building charges a minimum of $5.00 per document requests being less than 5 pages. The figures the County chose to use were what the various departments felt would cover the cost of providing a service and not as a money making endeavor.</p> <p>As provided in section 13.03, subdivision 3(c), when government entities determine a fee for making copies of data, they can charge only the actual costs of searching for and retrieving the data, and for making the copies. In the present case, Mr. Haasser explained that Deputy Chief Auditor/Treasurer Peggy Anderson was the County employee who located the meeting minutes and made the copies, and that she spent approximately 20 minutes in doing so. Mr. Haasser implied that if the County had charged Ms. Anderson's actual salary, which he did not provide, the charge would have been higher. However, regardless of which employee completes the task, the County apparently will charge $1 per page. The problem is that Mr. Haasser did not explain how the $1 fee represents the actual cost of providing the copies. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267872" title="01-047" target="_blank">Advisory Opinion 01-047</a>, the Commissioner opined that the labor cost must reflect an entity's actual cost:</p> <p class="opinion_quote">Mr. Cady stated that the District's average labor costs for secretarial and administrative staff are $20.00 per hour and $45.00 per hour respectively. However, the statute requires a government entity to charge its actual, not average, costs associated with producing copies of data. . . .</p> <p class="opinion_quote">The Commissioner recognizes that pursuant to Minnesota Rules, part 1205.0300, subpart 4, a government entity may be guided by a fee schedule of standard copying charges. However, the fee schedule must reflect the entity's actual and reasonable copying costs. The Commissioner finds that the District's is neither.</p> <p>The Commissioner addressed a similar situation involving Todd County in <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267937" title="04-055" target="_blank">Advisory Opinion 04-055</a>. He wrote:</p> <p class="opinion_quote">The Commissioner has issued many advisory opinions regarding copy charges. He consistently has discussed that it is not appropriate for a government entity to charge the labor rate of a highly paid employee unless it is necessary for that particular employee to search for and retrieve the data or to make copies of the data.</p> <p class="opinion_quote">In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267785" title="04-042" target="_blank">Advisory Opinion 04-042</a>, the Commissioner wrote:</p> <p class="opinionquoteinquote">Also, the County charged Ms. Scott the Sheriff's salary and benefit rate of $37.50 per hour for the ten minutes he said he spent searching for the data and typing the invoice. The Commissioner previously has opined that, in situations like this one, it is not appropriate to charge his rate of pay. (See, for example, Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267877" title="00-027" target="_blank">00-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/268029" title="01-033" target="_blank">01-033</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267872" title="01-047" target="_blank">01-047</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267597" title="04-038" target="_blank">04-038</a>.)</p> <p class="opinion_quote">In the present case, Mr. Haasser did not adequately explain why the skills of the Deputy Auditor/Treasurer, whose hourly wage appears to be approximately $30, were required to locate the minutes for three county board meetings, make copies of those minutes, load the eleven pages into the fax machine, enter the local telephone number, and press the start key. The Commissioner suggests this task could have been completed by someone with a lower skill level who receives a lower rate of pay.</p> <p class="opinion_quote">If, however, no employees at a lower salary level were available to complete the task, the Commissioner does not believe it was appropriate for the County to charge the Deputy Auditor/Treasurer's hourly rate, even though she made the copies. In Advisory Opinion 04-038, the Commissioner wrote:</p> <p class="opinionquoteinquote">The Commissioner reminds his readers that government entities are not required to charge a fee for copies of government data. Section 13.03, subdivision 3, states that entities may require the requesting person to pay the actual costs to search for, retrieve, and make copies of data. In addition, Minnesota Rules, section 1205.0300, states that entities may charge a reasonable fee for providing copies of public data. [Emphasis added.] Thus, if a government entity, in trying to determine how to arrive at a reasonable fee, recognizes that a lower-paid employee would be able to complete the task, it would be appropriate for the entity to charge a fee based on a rate that is lower than the rate of the employee who actually retrieves the data. Here, Ms. Forsland states that the lower-paid of the two employees in the unit i.e., the TPS4, retrieved the data. If Mn/DOT had determined that the skills required to retrieve the data matched someone who is paid less the TPS4, Mn/DOT could have made the decision to charge the rate of that lower paid employee.</p> <p class="opinion_quote">In other words, as government entities determine the actual costs of searching for and retrieving, and making copies of data, they should take into consideration that any charges must be reasonable. Thus, if an entity chooses to use a flat rate for labor costs, it should be no greater than that of the lowest paid staff who could possibly complete the task.</p> <p class="opinion_quote">In the case of this opinion, based on the language in section 13.03, it appears the labor charge assessed by the County is not allowable.</p> <p>In the present case, the County has not explained why the skills of the Deputy Auditor/Treasurer were required to make the photocopies. Therefore, the Commissioner is of the opinion that the County's labor charge is not allowable.</p> <p>Finally, Mr. Haasser noted that in the $1 per page fee, the County includes a four to five cent charge for paper and toner. It is appropriate for government entities to include such costs as long as they are reasonable. Mr. Haasser did not provide any information indicating how four to five cents represents the amount the County spends for paper and toner when it makes copies of data. Thus, the Commissioner cannot determine whether this portion of the $1 per page fee is allowable.</p> <p>A final note is in order. In this case, the fact that the County provided data on two sides of each of the seven pages seems to be irrelevant. In the Commissioner's thinking, the time required to make photocopies of one-sided pages or two-sided pages, or to make two-sided copies of one-sided pages likely is not different enough to affect the time required of a staff person to use the copy machine to make copies.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Aeikens raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Todd County did not comply with Minnesota Statutes, Chapter 13, in charging $7 for seven pages (double-sided) of copies of the minutes from three County Board meetings.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Brian J. Lamb <br /> Commissioner</p> <p class="date">Dated: August 26, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2672752670672022-01-19T19:25:36Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267937" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-25T15:16:43ZDid Todd County comply with Minnesota Statutes, Chapter 13, in charging $16 for copying and faxing eleven pages of minutes from three County Board meetings?August 25, 2004; Todd County36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On July 9, 2004, IPAD received a letter from Mike Knaak, of the St. Cloud Times. In his letter, Mr. Knaak asked the Commissioner to issue an advisory opinion regarding Todd County's charge for copies of government data.</p> <p>In response to Mr. Knaak's request, IPAD, on behalf of the Commissioner, wrote to Tony Haasser, Todd County Coordinator. The purposes of this letter, dated July 16, 2004, were to inform him of Mr. Knaak's request and to ask him to provide information or support for the County's position. On August 3, 2004, IPAD received a response, dated August 2, 2004, from Mr. Haasser.</p> <p>A summary of the facts as Mr. Knaak provided them is as follows. In his opinion request, Mr. Knaak wrote:</p> <p class="opinion_quote">On April 22, I requested that copies of minutes of the last three Todd County Board meetings be faxed to me. I was charged $16 for an 11-page fax from Long Prairie to St. Cloud. That amounted to a $5 fax charge plus $1 a page. This is in accordance with what I understand to be the county's copy and fax fee policy.</p> <p class="opinion_quote">I'm questioning whether the actual cost of the fax, which is what I understand Chapter 13 of Minnesota law requires governments to charge, can be $16 for an 11-page fax. I understand that charges are uniform throughout the county and were adopted according to a countywide policy that attempted to make the charges uniform.</p> <p>Mr. Knaak attached to his opinion request a copy of an email from Mr. Haasser to a Times reporter. As part of that email, Mr. Haasser indicates that the County charges $5 per faxing and $1 per page for copying.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Knaak asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did Todd County comply with Minnesota Statutes, Chapter 13, in charging $16 for copying and faxing eleven pages of minutes from three County Board meetings?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).)</p> <p>In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data.</p> <p>Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.</p> <p>In his comments to the Commissioner, Mr. Haasser wrote:</p> <p class="opinion_quote">The case that we are addressing came in the Auditor/Treasurers' [sic] office April 22, 2004 and was handled by Sandi Sneed, Deputy Auditor/Treasurer. The procedure is fairly standard; a request is received, the documents are retrieved from the County Board Minutes Book, copied and the originals are returned to the book. A cover letter/invoice is prepared and the copies are faxed.</p> <p class="opinion_quote">This is a time consuming process as the minutes are kept in binders that must be taken apart, locate the eleven pages (for this request) and make copies of them. The deputy must also observe the faxing of the document. This project, at a minimum required 20-25 minutes with no complications. At times these requests take even longer if there are problems with the copy machines, busy fax lines, etc.</p> <p class="opinion_quote">In [a previous Commissioner of Administration advisory opinion] it appeared that the billing and cover letter costs cannot be considered. I would differ in that the State Auditor's requirements need [sic] for paper trails of each of these transactions. Staff time for billing, receipting and re-billing in some cases and in some cases not receiving reimbursement at all cost the county and must be covered somehow by the public entities.</p> <p>The Commissioner has issued many advisory opinions regarding copy charges. He consistently has discussed that it is not appropriate for a government entity to charge the labor rate of a highly paid employee unless it is necessary for that particular employee to search for and retrieve the data or to make copies of the data.</p> <p>In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267785" title="04-042" target="_blank">Advisory Opinion 04-042</a>, the Commissioner wrote:</p> <p class="opinion_quote">Also, the County charged Ms. Scott the Sheriff's salary and benefit rate of $37.50 per hour for the ten minutes he said he spent searching for the data and typing the invoice. The Commissioner previously has opined that, in situations like this one, it is not appropriate to charge his rate of pay. (See, for example, Advisory Opinions <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267877" title="00-027" target="_blank">00-027</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/268029" title="01-033" target="_blank">01-033</a>, <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267872" title="01-047" target="_blank">01-047</a> and <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267597" title="04-038" target="_blank">04-038</a>.)</p> <p>In the present case, Mr. Haasser did not adequately explain why the skills of the Deputy Auditor/Treasurer, whose hourly wage appears to be approximately $30, were required to locate the minutes for three county board meetings, make copies of those minutes, load the eleven pages into the fax machine, enter the local telephone number, and press the start key. The Commissioner suggests this task could have been completed by someone with a lower skill level who receives a lower rate of pay.</p> <p>If, however, no employees at a lower salary level were available to complete the task, the Commissioner does not believe it was appropriate for the County to charge the Deputy Auditor/Treasurer's hourly rate, even though she made the copies. In <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267597" title="04-038" target="_blank">Advisory Opinion 04-038</a>, the Commissioner wrote:</p> <p class="opinion_quote">The Commissioner reminds his readers that government entities are not required to charge a fee for copies of government data. Section 13.03, subdivision 3, states that entities may require the requesting person to pay the actual costs to search for, retrieve, and make copies of data. In addition, Minnesota Rules, section 1205.0300, states that entities may charge a reasonable fee for providing copies of public data. [Emphasis added.] Thus, if a government entity, in trying to determine how to arrive at a reasonable fee, recognizes that a lower-paid employee would be able to complete the task, it would be appropriate for the entity to charge a fee based on a rate that is lower than the rate of the employee who actually retrieves the data. Here, Ms. Forsland states that the lower-paid of the two employees in the unit i.e., the TPS4, retrieved the data. If Mn/DOT had determined that the skills required to retrieve the data matched someone who is paid less the TPS4, Mn/DOT could have made the decision to charge the rate of that lower paid employee.</p> <p>In other words, as government entities determine the actual costs of searching for and retrieving, and making copies of data, they should take into consideration that any charges must be reasonable. Thus, if an entity chooses to use a flat rate for labor costs, it should be no greater than that of the lowest paid staff who could complete the task.</p> <p>In the case of this opinion, based on the language in section 13.03, it appears the labor charge assessed by the County is not allowable.</p> <p>Further, the Commissioner previously has addressed the appropriateness of government entities including billing costs in their fees for copies of data:</p> <p class="opinion_quote">...The statute allows a government entity to recover some, but not all, of the cost it incurs to produce copies of government data. The invoice and fax cover sheet were not part of the requested copies of data for which the County may charge. (See also <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267813" title="97-013" target="_blank">Advisory Opinion 97-013</a>.)</p> <p>See <a href="http://mn.gov/admin/data-practices/opinions/library/?id=36-267589#/detail/appId/1/id/267785" title="04-042" target="_blank">Advisory Opinion 04-042</a>.</p> <p>Therefore, it is not appropriate for the County to include, as part of its copy charge, any costs related to the creation of cover letters and invoices.</p> <p>Finally, the Commissioner acknowledges that it may be difficult, administratively, for some government entities to set a unique fee for each request for copies. However, the statute authorizes entities to charge only their actual and reasonable costs, which implies that copy charges must, at least in part, be calculated on a case-by-case basis. The Commissioner intends to bring these issues to the Legislature's attention, as guidance would be helpful.</p> <hr /> <h2>Opinion:</h2> <p>Based on the facts and information provided, my opinion on the issue that Mr. Knaak raised is as follows:</p> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Todd County did not comply with Minnesota Statutes, Chapter 13, in charging $16 for copying and faxing eleven pages of minutes from three County Board meetings.</td> </tr> </tbody> </table> <br /> <p>Signed:</p> <p>Brian J. Lamb <br /> Commissioner</p> <p class="date">Dated: August 25, 2004</p> <hr /> </dd> </dl> </div> </td> </tr> </tbody> </table> </div>2679372022-01-19T19:25:35Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267939" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-25T15:15:43ZDid the Benton County Auditor/Treasurer's office comply with Minnesota Statutes, Chapter 13, in charging $1 for a one-page copy of a computer printout of tax information relating to a specific parcel of property?August 25, 2004; Benton County Auditor/Treasurer36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 9, 2004, IPAD received a letter from Kelly Scott, of the St. Cloud Times. In her letter, Ms. Scott asked the Commissioner to issue an advisory opinion regarding charges the Benton County Auditor/Treasurer's office assessed for copies of data. </p><p> In response to Ms. Scott's request, IPAD, on behalf of the Commissioner, wrote to Joan Neyssen, the Auditor/Treasurer. The purposes of this letter, dated July 16, 2004, were to inform her of Ms. Scott's request and to ask her to provide information or support for the office's position. The office did not provide comments to the Commissioner. </p><p> A summary of the facts as Ms. Scott provided them is as follows. In her opinion request, Ms. Scott wrote that she went to the office to request copies of tax information on a property in Sauk Rapids. She stated: </p><p class="opinion_quote"> When I went to the Auditor/Treasurer's office, I was first told that I couldn't have a copy of the actual property tax statement but could have a computer printout of the information. The reason I was given was that I wasn't the property owner. I asked the office staff to tell me the part of the law that said I couldn't get a copy of the original and wasn't given an answer. </p><p class="opinion_quote"> They ended up giving me a 1-page copy of the computer printout of the information and I was charged $1 for it. I understand that this is a uniform rate throughout the county as determined by a county-approved fee schedule. I do not have a copy of that fee schedule. </p><p class="opinion_quote"> I'm questioning whether a copy's actual costs, which is what I understand Chapter 13 of Minnesota law requires governments to charge, can be $1 for a one-page document. I especially wonder since most of the staff time involved in the request was spent arguing with me about whether the information was public. Making the print out took less than a minute. </p><hr /><br /><h2> Issue: </h2><p> In her request for an opinion, Ms. Scott asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Benton County Auditor/Treasurer's office comply with Minnesota Statutes, Chapter 13, in charging $1 for a one-page copy of a computer printout of tax information relating to a specific parcel of property?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).) </p><p> In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data. </p><p> Ms. Scott states that she was charged $1 for a one-page copy of the printout of tax information on a particular parcel of property. The Auditor/Treasurer's office did not provide comments to the Commissioner indicating how it arrived at the $1 fee. Therefore, the Commissioner cannot make a determination regarding whether the Auditor/Treasurer's office complied with Chapter 13. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Ms. Scott raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Commissioner cannot determine if the Benton County Auditor/Treasurer's office complied with Minnesota Statutes, Chapter 13, in charging $1 for a one-page copy of a computer printout of tax information relating to a specific parcel of property.</td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 25, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679392022-01-19T19:25:35Z266258266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267941" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-25T15:14:43ZDid the Benton County Recorder's office comply with Minnesota Statutes, Chapter 13, in charging $3.50 for copies of seven pages of data relating to the mortgage on a specific parcel of property? August 25, 2004; Benton County Recorder36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 13, 2004, IPAD received a letter from Kelly Scott of the St. Cloud Times. In her letter, Ms. Scott asked the Commissioner to issue an advisory opinion regarding charges the Benton County Recorder's office assessed for copies of data. </p><p> In response to Ms. Scott's request, IPAD, on behalf of the Commissioner, wrote to Marilyn Novak, the Recorder. The purposes of this letter, dated July 16, 2004, were to inform her of Ms. Scott's request and to ask her to provide information or support for the office's position. The Recorder's office did not provide comments to the Commissioner. </p><p> A summary of the facts as Ms. Scott provided them is as follows. In her opinion request, Ms. Scott states that she went to the County to request copies of all documents related to the mortgage on a particular parcel of property. She wrote: </p><p class="opinion_quote"> I went to the recorder's office for the information on the mortgage. I was shown how to look up the information. I then searched for the information I was looking for, found the documents' number and typed them into the computer that's set up for public use. I printed the documents from the machine, and then went next door to the counter to be billed $.50 a page for them. </p><p class="opinion_quote"> I was charged $3.50 for the seven-pages, something I found bizarre since it was my time and effort that found the information. A staff member generally directed me to the Index and computer system. But, I'd estimate that took less than a minute. Still I was charged what I understand to be the county's copying rate of $.50 a page. </p><p class="opinion_quote"> I'm questioning whether the copies' actual costs, which is what I understand Chapter 13 of Minnesota law required governments to charge, can be $.50 a page when I essentially did all the work myself.... </p><hr /><br /><h2> Issue: </h2><p> In her request for an opinion, Ms. Scott asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Benton County Recorder's office comply with Minnesota Statutes, Chapter 13, in charging $3.50 for copies of seven pages of data relating to the mortgage on a specific parcel of property?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).) </p><p> In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data. </p><p> Ms. Scott states that she was charged $3.50 for seven pages of data relating to a mortgage on a particular property. The Recorder's office did not provide comments to the Commissioner indicating how it arrived at the $3.50 fee. Therefore, the Commissioner cannot make a determination regarding whether the Recorder's office complied with Chapter 13. </p><p> The Commissioner, however, provides the following note. As stated above, in determining fees for copies of data, government entities may charge only the actual costs of searching for and retrieving the data, plus the cost of making the copies. Here, Ms. Scott states that she, not the Recorder's office, searched for and located the data, and then printed the documents. If the Recorder's office did not expend any staff time on gathering and making the copies, it is not clear why the Recorder's office assessed Ms. Scott a charge. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue raised that Ms. Scott raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Commissioner cannot determine if the Benton County Recorder's office complied with Minnesota Statutes, Chapter 13, in charging $3.50 for seven pages of data relating to the mortgage on a specific property. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 25, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2679412022-01-19T19:25:33Z266258266262266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266659" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-18T15:15:43ZPursuant to Minnesota Statutes, section 13.04, subdivision 4, did the Hennepin County Children, Family and Adult Services Department violate the Xs' rights because it did not make the required determination about their data challenge?August 18, 2004; Hennepin County36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 9, 2004, IPAD received a letter from Mr. and Mrs. X, in which they asked the Commissioner to issue an advisory opinion regarding a possible violation of their rights under Minnesota Statutes, Chapter 13, by the Hennepin County Children, Family and Adult Services Department (CFASD.) </p><p> In response to the Xs' request, IPAD, on behalf of the Commissioner, wrote to Sue Zuidema, Acting Director of CFASD. The purposes of this letter, dated July 14, 2004, were to inform her of the Xs' request and to ask her to provide information or support for CFASD's position. CFASD did not submit any comments in response. A summary of the facts of this matter follows. </p><p> According to the Xs, in a letter dated February 17, 2004, they wrote to Ms. Zuidema to challenge the accuracy and completeness of certain data maintained by CFASD, pursuant to Minnesota Statutes, section 13.04, subdivision 4. Ms. Zuidema did not respond. In a letter dated June 16, 2004, the Xs wrote again to Ms. Zuidema, asking for a response to their February data challenge. Ms. Zuidema did not respond. </p><hr /><br /><h2> Issue: </h2><p> In their request for an opinion, Mr. and Mrs. X asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.04, subdivision 4, did the Hennepin County Children, Family and Adult Services Department violate the Xs' rights because it did not make the required determination about their data challenge?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.04, subdivision 4, an individual subject of government data has the right to challenge the accuracy and/or completeness of the data. According to the procedures set forth at section 13.04, subdivision 4(a): </p><p class="opinion_quote"> To exercise this right, an individual shall notify in writing the responsible authority describing the nature of the disagreement. The responsible authority shall within 30 days either: (1) correct the data found to be inaccurate or incomplete and attempt to notify past recipients of inaccurate or incomplete data, including recipients named by the individual; or (2) notify the individual that the authority believes the data to be correct. </p><p> In a letter dated February 17, 2004, the Xs wrote to Ms. Zuidema, the responsible authority for CFASD, to challenge the accuracy and completeness of data about them. Pursuant to the requirements of section 13.04, subdivision 4, Ms. Zuidema was required, within 30 days of receipt of that letter, either to correct the data or to notify the Xs that she believes the data are accurate and complete. Ms. Zuidema did not respond either to the Xs' data challenge dated February 17, 2004, or to their follow-up letter dated June 16, 2004. Therefore, Ms. Zuidema has not made a determination about the data challenge presented by the Xs, as is required by section 13.04, subdivision 4. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue raised by Mr. and Mrs. X is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Pursuant to Minnesota Statutes, section 13.04, subdivision 4, the Hennepin County Children, Family and Adult Services Department violated the Xs' rights because it did not make the required determination about their data challenge. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 18, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2666592663052022-01-19T19:25:33Z266258266259266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267645" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-18T15:14:43ZHas the Middle-Snake-Tamarac Rivers Watershed District complied with Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 103D.315, subdivision 5, when it denied inspection of data because the requestor refused to turn off a tape recorder?August 18, 2004; Middle-Snake-Tamarac Rivers Watershed District36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 6, 2004, IPAD received a letter dated June 30, 2004, from Jim Stengrim and Wallace Dietrich. In their letter, Mr. Stengrim and Mr. Dietrich asked the Commissioner to issue an advisory opinion regarding their access to certain data that the Middle-Snake-Tamarac Rivers Watershed District maintains. </p><p> In response to Mr. Stengrim and Mr. Dietrich's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the Watershed District's engineer. The purposes of this letter, dated July 9, 2004, were to inform him of Mr. Stengrim and Mr. Dietrich's request and to ask him to provide information or support for the Watershed District's position. On July 30, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the Watershed District. </p><p> A summary of the facts as Mr. Stengrim and Mr. Dietrich provided them is as follows. In a letter dated May 17, 2004, Mr. Stengrim wrote to the Watershed District and asked to schedule an appointment to review certain data relating to the Agassiz Valley Water Management Project: </p><p class="opinion_quote"> 1. Organization document for the Project Work Team. <br /> 2. List of members of the Project Work Team. <br /> 3. Minutes/notes of the [sic] each Project Work Team meeting. <br /> 4. Agenda of each meeting. <br /> 5. Project consent form completed. <br /> 6. List of all subcommittees formed of the Project Work Team. <br /> 7. Member list of subcommittees. <br /> 8. Minutes/notes of meetings of subcommittees. <br /> 9. All required permits [sic] applications. <br /> 10. All environmental documents prepared. <br /> 11. All funding applications completed. <br /> 12. Itemized receipts for all expenses to date. <br /> 13. Itemized list of all funds received for the project to date. </p><p> Mr. Stengrim and Mr. Dietrich arranged to review the data at the Watershed District's office on May 28, 2004. </p><p> In a letter dated May 31, 2004, Mr. Stengrim and Mr. Dietrich wrote to Mr. Adrian regarding the visit. They wrote: </p><p class="opinion_quote"> You came to the table with a box full of what appeared to be files. You then asked if a recorder was going to be used. I informed you that one was going to be used for note taking. You then informed us that if we used a recorder you would not allow us to review the data requested. You stated that you had been in contact with the District's attorney about the recorder issue. We responded that we were only there to review the data requested and not to interview you or anyone else. You were asked if you had the data requested ready for review. Your response was that we would need to look through the box to find it. </p><p class="opinion_quote"> Since we were firm in our decision to use a recorder you told us the meeting was over and that we should leave. We left the District office without the opportunity to review the requested public data. </p><p> In a letter dated June 11, 2004, Mr. Adrian wrote to Mr. Stengrim and Mr. Dietrich: </p><p class="opinion_quote"> ...Your account of the meeting is different from mine. When the meeting started I asked if this meeting was being recorded. Mr. Stengrim's response was that it was. Based on what he said I believed that either Mr. Stengrim or Mr. Dietrich were recording the conversation. </p><p class="opinion_quote"> I informed both of you that you did not have permission to record conversations with me or any District employee. Your insistence on recording the conversation led to me to conclude that the meeting should be ended. At no time were you denied access to view the data. </p><p class="opinion_quote"> If you still want to view the documents you requested let me know and I will set up a time to do that as soon as possible. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Stengrim and Mr. Dietrich asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Has the Middle-Snake-Tamarac Rivers Watershed District complied with Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 103D.315, subdivision 5, when it denied inspection of data because the requestor refused to turn off a tape recorder?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statues, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) </p><p> Minnesota Statutes, section 103D.315, subdivision 5, states, in relevant part, The records [of a watershed district] must be open to inspection by the property owners within the watershed district and all other interested parties at all reasonable times. </p><p> In his comments to the Commissioner, Mr. Sobolik wrote: </p><p class="opinion_quote"> The letter of Mr. Stengrim and Mr. Dietrich to your Department dated June 30, 2004, correctly stated that they had filed a request for data pursuant to the District's data practices policy and that an appointment to meet with Mr. Adrian was scheduled for May 28, 2004.... </p><p class="opinion_quote"> When Mr. Stengrim and Mr. Dietrich arrived at the District Office on Friday, May 28, 2004, Mr. Adrian did in fact carry a box full of documents that were intended to be reviewed by Mr. Stengrim and Mr. Dietrich. Mr. Adrian had spent several hours prior to the meeting gathering the documents that he hoped would satisfy their request although there was [sic] some questions he had regarding their request. The documents that they requested to inspect are quite voluminous. The actual files Mr. Adrian pulled from the file cabinets to hopefully address their request filled approximately 1.5 file storage boxes. Mr. Adrian knew that some of the requested data required additional clarification and once this was received, he was prepared to get any other additional data the District had or inform them if the District did not have it. </p><p class="opinion_quote"> After Jim Stengrim and Wallace Dietrich arrived at the office, Mr. Adrian entered the meeting room with a box of files....Also present at the meeting was Nick Drees, an employee of the District....Mr. Adrian asked Mr. Stengrim if they were being recorded. Mr. Stengrim responded yes . Mr. Adrian then told Mr. Stengrim that he did not have Mr. Adrian's permission to record any conversation with him. Mr. Adrian also informed Mr. Stengrim and Mr. Dietrich that he would not give any permission to be recorded. Without dealing with the issue of recording, Mr. Stengrim proceeded to ask several questions including (not verbatim) was Mr. Adrian denying him access to the data he requested. Mr. Adrian's response was, no, he was not denying him access to data, he was simply not allowing him to record his conversation with Mr. Adrian.... </p><p class="opinion_quote"> When it became clear to Mr. Adrian that Mr. Stengrim was not going to stop recording, he asked them to leave.... </p><p class="opinion_quote"> [Chapter 13] only applies to [government] data....Clearly, recording secretly conversations between Mr. Adrian and Mr. Stengrim is not government data or data of any sort which is covered by [Chapter 13]. </p><p class="opinion_quote"> ...At no time was Mr. Stengrim denied access to review the data that Mr. Adrian brought to the meeting. It is Mr. Stengrim himself that did not want to review the documents when he decided not to turn his recorder off. In fact, Mr. Stengrim was offered to view the data as long as he would not record any conversation of Mr. Adrian. Mr. Stengrim and Mr. Dietrich refused to do this.... </p><p> In the present case, there is a dispute over Mr. Stengrim and Mr. Dietrich's use of a tape recorder. Mr. Stengrim and Mr. Dietrich contend that the purpose of the recorder was for note taking and that they informed Mr. Adrian they were not interested in having a conversation with him. Mr. Stengrim and Mr. Dietrich also assert they were asked to leave without being able to review any of the data they had requested. Conversely, Mr. Sobolik, on behalf of the Watershed District, argues that Mr. Stengrim and Mr. Dietrich were simply being denied the ability to record conversations under the guise of [Chapter 13]. The Commissioner cannot resolve this dispute. Furthermore, the issue of whether or not a member of the public is permitted to tape record an employee of a government entity is beyond the Commissioner's authority as granted in section 13.072. </p><p> Chapter 13 provides that Mr. Stengrim and Mr. Dietrich, upon request, have the right to inspect data. If they want to bring in tape recorders and take voice notes while inspecting data, that is appropriate, just as it would be appropriate for them to take notes on paper. However, Mr. Stengrim, Mr. Dietrich, and Mr. Adrian will have to resolve, in another forum, the central dispute over the use of the tape recorder. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim and Mr. Dietrich raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Commissioner cannot determine whether the Middle-Snake-Tamarac Rivers Watershed District complied with Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 103D.315, subdivision 5, when Mr. Stengrim and Mr. Dietrich arrived at the Watershed District to inspect certain data. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 18, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2676452668882668892022-01-19T19:25:31Z266258266259266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-266828" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-12T15:14:43ZDid the Minnesota Board of Water and Soil Resources comply with Minnesota Statutes, Chapter 13, in responding to a request to inspect certain government data?August 12, 2004; Minnesota Board of Water and Soil Resources36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" border="0" cellspacing="0" cellpadding="20"><tbody><tr><td align="left" valign="top"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On July 23, 2004, IPAD received a letter dated July 22, 2004, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Minnesota Board of Water and Soil Resources (BWSR) maintains. </p><p> In response to Mr. Stengrim's request, IPAD, on behalf of the Commissioner, wrote to James Haertel, Water Management Specialist at BWSR. The purposes of this letter, dated July 30, 2004, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for BWSR's position. On August 5, 2004, IPAD received a response, dated same, from Mr. Haertel. </p><p> A summary of the facts as Mr. Stengrim provided them is as follows. In a July 14, 2004, email, Mr. Stengrim wrote to Mr. Haertel: ...I request to inspect all data that BOWSER [sic] has on the Middle-Snake Rivers Watershed/Middle-Snake-Tamarac Rivers Watershed. When you have located all the documents, please contact me to schedule an appointment to inspect them. </p><p> Mr. Haertel responded on July 14, 2004: </p><p class="opinion_quote"> I can arrange to retrieve all the appropriate files from archives and our office, review all the files to remove any protected or confidential data if there is any, and have the files ready for your inspections and any duplication you desire within a week or two. When the files are ready for your inspection I would contact you to set up an appointment. The estimated cost would increase to $300-$500. </p><hr /><br /><h2> Issue: </h2><p> In his request for an opinion, Mr. Stengrim asked the Commissioner to address the following issue: </p><dd><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">Did the Minnesota Board of Water and Soil Resources comply with Minnesota Statutes, Chapter 13, in responding to a request to inspect certain government data?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) </p><p> In addition, section 13.03, subdivision 3(a) states, Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places...If a person requests access for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data. </p><p> In his comments to the Commissioner, Mr. Haertel wrote: </p><p class="opinion_quote"> ...Mr. Stengrim's original request was for copies of data related to the establishment of the Middle-Snake River Watershed District. After receipt of my response made under Minnesota Statutes section 13.03, Subd. 3, item c, Mr. Stengrim requested to inspect all data concerning the watershed district. My response to the second request is the subject of Mr. Stengrim's request for an opinion from the Commissioner of the Department of Administration. </p><p class="opinion_quote"> An oversight occurred in my second response to Mr. Stengrim. It is clear under Minnesota Statutes, section 13.03, Subd. 3, item a, that inspection of government data is free and charges can only be incurred for copying. I have contacted Mr. Stengrim (copy enclosed), informed him of the situation, and offered to have the data available for his inspection within a couple of business days. </p><p> As provided for in section 13.03, subdivision 3(a), inspection of government data is free. Although Mr. Haertel acknowledges this in his comments to the Commissioner, BWSR did not respond appropriately to Mr. Stengrim's data request. The Commissioner hopes BWSR and Mr. Stengrim have agreed upon a time for Mr. Stengrim to inspect, free of charge, the data he requested. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows: </p><table><tbody><tr align="left" valign="CENTER"><td id="opinion_issuebox">The Minnesota Board of Water and Soil Resources did not comply with Minnesota Statutes, Chapter 13, in responding to a request to inspect certain government data. <br /></td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 12, 2004 </p><hr /><br /><p /></dd></div></td></tr></tbody></table></body></div>2668282667552022-01-19T19:25:31Z266258513961266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267246" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-08-06T15:14:43ZIs the Red River Watershed Management Board in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?August 6, 2004; Red River Watershed Management Board36<div xmlns="http://www.w3.org/1999/xhtml"><body><div id="opinion_introbox"><p> This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below. </p></div><table width="100%" cellspacing="0" cellpadding="20" border="0"><tbody><tr><td valign="top" align="left"><br /><div align="left"><p /><h2> Facts and Procedural History: </h2><p> On June 15, 2004, IPAD received a letter dated June 14, 2004, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Red River Watershed Management Board (RRWMB) maintains. </p><p> In response to Mr. Stengrim's request, IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, Administrator of the RRWMB. The purposes of this letter, dated June 23, 2004, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the RRWMB's position. On July 7, 2004, IPAD received a response, dated same, from Ms. Erickson. </p><p> A summary of the facts as Mr. Stengrim provided them is as follows. In his opinion request, Mr. Stengrim wrote, On June 1, 2004 I again contacted [the RRWMB] requesting a copy of their adopted policy procedure. </p><p> Mr. Stengrim provided a copy of the RRWMB's response. Ms. Erickson wrote: </p><p class="opinion_quote"> The RRWMB is currently is the process of adopting a data policy regarding information requested from the board. At the present time, subject to the advice of legal counsel, all information requested from the RRWMB must be submitted in writing. As per the letter dated May 27, 2004 which was sent to you, please submit a written request, setting forth in detail the documents you are interested in obtaining. </p><p> In a fax dated June 3, 2004, Mr. Stengrim wrote, I would like to clarify my request for a copy of the data policy procedure for the RRWMB. The material requested is the written form of the 'public access procedures' of the RRWMB. If the requested material is unavailable please provide written confirmation of that fact. </p><p> In his opinion request, Mr. Stengrim wrote, As of the date of this letter I have not received the requested data. It appears the RRWMB does not presently have a 'public access procedures' policy. </p><hr /><br /><p /><h2> Issue: </h2><p> In his request for an opinion, Mr. Stengrim asked the Commissioner to address the following issue: </p><dd /><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">Is the Red River Watershed Management Board in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?</td></tr></tbody></table><p /><hr /><br /><h2> Discussion: </h2><p> Minnesota Statutes, section 13.03, subdivision 2(b), states: </p><p class="opinion_quote"> The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public. </p><p> In her comments to the Commissioner, Ms. Erickson wrote: </p><p class="opinion_quote"> ...please find enclosed a draft of the Data Practices policy that will be considered at our next board meeting on July 20, 2004. </p><p class="opinion_quote"> The RRWMB believes that the attached policy fulfills the requirements of Minnesota law. When the board has formally adopted this policy, I will provide a copy to the citizen who requested the advisory opinion and, of course, to any citizen who makes a similar request. </p><p> The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. As of the date Mr. Stengrim requested this opinion, it appears the RRWMB had not adopted its public access procedures and, therefore, was not in compliance with Chapter 13. The Commissioner urges the RRWMB to adopt its procedures policy as soon as possible, if it has not done so already. </p><p> As a final note, the Commissioner encourages the RRWMB to contact IPAD if it has any questions regarding its policy relating to public access procedures. </p><hr /><p /><h2> Opinion: </h2><p> Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows: </p><table><tbody><tr valign="CENTER" align="left"><td id="opinion_issuebox">The Red River Watershed Management Board is not in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).</td></tr></tbody></table><br /><p> Signed: </p><p> Brian J. Lamb <br /> Commissioner </p><p class="date"> Dated: August 6, 2004 </p><hr /><br /><p /></div></td></tr></tbody></table></body></div>2672462664262022-01-19T19:25:31Z266258266262266265266258<custom:Link urlOnly="true" type="Component" destination="tcm:36-267792" templateURI="tcm:0-0-0" origin="tcm:0-0-0" />2004-07-29T15:14:43ZDid the Minnesota Department of Revenue provide proper notice, pursuant to Minnesota Statutes, Chapter 13, and federal law, when it asked an individual to supply his Social Security number in connection with filing his 2003 Minnesota Individual Tax form?July 29, 2004; Minnesota Department of Revenue36<div xmlns="http://www.w3.org/1999/xhtml"> <div id="opinion_introbox"> <p>This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.</p> </div> <table width="100%" border="0" cellspacing="0" cellpadding="20"> <tbody> <tr> <td align="left" valign="top"><br /> <div align="left"> <h2>Facts and Procedural History:</h2> <p>On June 7, 2004, IPAD received a letter from Howard A. Vomhof, in which he asked the Commissioner to issue an advisory opinion regarding a determination by the Minnesota Department of Revenue about a data practices issue. The issue involves the collection of private data from Mr. Vomhof. In his request, he specifically stated that he wished to be identified in this opinion, and gave his consent for same.</p> <p>In response to Mr. Vomhof's request, IPAD, on behalf of the Commissioner, wrote to Daniel A. Salomone, Commissioner of Revenue. The purposes of this letter, dated June 14, 2004, were to inform him of Mr. Vomhof's request and to ask him to provide information or support for the Department's position. On June 21, 2004, IPAD received a response from Commissioner Salomone. A summary of the facts of this matter follows.</p> <p>Mr. Vomhof questions whether the Department provided him with complete proper notice, under state and federal law, in connection with the collection of his Social Security number on the Department's 2003 Minnesota Individual Income Tax form.</p> <p>In his comments to the Commissioner, Commissioner Salomone wrote:</p> <p class="opinion_quote">Minn. Stat. section 289A.08, subd. 11, regarding information required to be included on an income tax return, specifically says that the return 'must state the social security number of the taxpayer'. The instruction booklet advises individuals that all information on their return (other than the information listed in the instructions as not being required) is required by Minnesota law in order to determine their correct tax liability. Part of determining their correct tax liability is having enough information from them to properly identify who they are, so that their income tax payment or income tax refund can be credited or sent to the right person. . . . . The instruction booklet has a comprehensive explanation of all the persons or entities authorized by law to share information from an individual's income tax return with the Department of Revenue. This list is derived from the list that appears in Minn. Stat. section 270B.14. . . . .</p> <p class="opinion_quote">The Department of Revenue has always taken great care in preparing the income tax instruction booklet every year, to ensure that the use of information portion is accurate, complete, and up to date with the most current law changes included. . . . .</p> <p class="opinion_quote">One final point I would like to address. The [opinion notice from IPAD] indicates that the advisory opinion is going to discuss federal law pertaining to the notice to individuals of the need for and use of their social security numbers, as well as state law. The authority under Minn. Stat. section 13.072 to issue advisory opinions appears to be limited to Minnesota law. Therefore, I request that your opinion be limited only to the application of Minnesota law.</p> <hr /> <br /> <h2>Issue:</h2> <p>In his request for an opinion, Mr. Vomhof asked the Commissioner to address the following issue:</p> <dl> <dd> <table> <tbody> <tr align="left" valign="center"> <td id="opinion_issuebox">Did the Minnesota Department of Revenue provide proper notice, pursuant to Minnesota Statutes, Chapter 13, and federal law, when it asked an individual to supply his Social Security number in connection with filing his 2003 Minnesota Individual Tax form?</td> </tr> </tbody> </table> <hr /> <br /> <h2>Discussion:</h2> <p>At the outset, the Commissioner (of Administration) wishes to address Commissioner Salomone's statement that, under Minnesota Statutes, section 13.072, the Commissioner's authority to issue advisory opinions appears to be limited to Minnesota law. Pursuant to section 13.03, subdivision 1, federal laws can and do classify data maintained by Minnesota government entities, as defined at section 13.02, subdivi