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.
Facts and Procedural History:On April 19, 1994, PIPA received a letter, via facsimile transmission, from Mr. Mark R. Anfinson. Mr. Anfinson indicated that he was writing on behalf of his client, the St. Cloud Times newspaper. He explained that he was requesting a Commissioner's opinion on two issues that have arisen in connection with a search being conducted to fill the vacancy of St. Cloud State University (SCSU).
According to Mr. Anfinson, the State University Board (SUB) has appointed a presidential search committee that is charged with selecting a new SCSU president. Mr. Anfinson explained that this description of the search committee's charge was taken from "U News", a publication of the SCSU public relations office. (Mr. Anfinson enclosed a copy of the issue of the publication in which the statement about the committee's charge was published.) The search committee has been examining candidate qualifications for several weeks and has now narrowed the list of candidates to nine. Those candidates will be interviewed by what Mr. Anfinson called a "committee" of the search committee.
Mr. Anfinson explained that given the charge of the search committee and the fact that a part of the committee was about to interview applicants, that it was the position of his client that the nine remaining candidates are finalists for purposes of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter "MGDPA". Under the MGDPA, the names of applicants who are finalists for public employment are public data. Mr. Anfinson stated that it was the position of SCSU that finalists had not yet been selected and no names would be released.
Mr. Anfinson went on to explain that his client had also sought other public information about all of the applicants including their job histories and their education and training background. He stated that the search committee had provided only an outline of this information and stripped out specific details including things like names of colleges attended and specific places of employment. Following this discussion of the attempts by his client to get access to data, Mr. Anfinson asked the Commissioner of Administration to issue an opinion on the issues that appear in the "Issues" section below.
In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner wrote to Dr. Terrence J. MacTaggart, the Chancellor of the State University System. The purposes of this letter, dated April 22, 1994, were to inform Dr. MacTaggart of Mr. Anfinson's request, to ask Dr. MacTaggart or the System's attorney to provide information concerning the issues raised, to address some specific questions associated with those issues and to inform him of the date by which the Commissioner was required to issue this opinion.
On April 29, 1994, PIPA received a letter of response from Dr. MacTaggart. In this response, Dr. MacTaggart described the process that is being followed by the SUB in selecting a new president for St. Cloud State University. He clarified that, contrary to the article in "U News", that the new president is actually selected by the SUB and will not be selected by the search committee. In the process being used to fill the vacancy in the office of president, four individuals, who Dr. MacTaggart referred to as "semi-finalists", will be interviewed by a variety of on-campus groups at St. Cloud State. Following those interviews, the State University Board will select individuals, who Dr. MacTaggart referred to as "finalists", who will be interviewed by the State University Board. One of these individuals will be selected by the Board as the new SCSU president.
Dr. MacTaggart further clarified that the individuals referred to in the selection process as "semi-finalists" are advised that their names become public upon being selected as "semi-finalists". According to Dr. MacTaggart, it is the position of the SUB that even though the individuals are referred to as "semi-finalists" in the Board's search process, they meet the definition of finalist for purposes of Minnesota Statutes Section 13.43, subdivision 3. Based on that position, the names of the "semi-finalists" were released to the public on April 28, 1994.
Dr. MacTaggart also provided comments about the fact that the SUB stripped out references to specific schools attended and places worked when it provided data in response to the St Cloud Times' request for public data on applicants. Dr. MacTaggart pointed out that, in Minnesota Statutes Section 13.43, subdivision 3, the legislature has decided that the identity of applicants remain private unless an applicant becomes a finalist. According to him, applicants who do not become finalists are entitled to have their identities remain unknown to the public. It was his position that releasing details of schools attended and places worked could identify some applicants who did not become finalists. This release would conflict with the legislative policy, established in Section 13.43, subdivision 3, that the identities of applicants who do not become finalists should not be released to the public. In support of this position, he cited to and discussed a data practices rule provision dealing with the meaning of the term "data on individuals". (See Minnesota Agency Rules, Section 1205.200, subpart 4.)
He also stated that nothing in section 13.43, subdivision 3 requires that specific details about places of employment, job titles, dates of graduation and so forth be treated as public data. It was his opinion that the MGDPA's reference to job history and education and training as public data was only generic and did not require the release of specific data. It was his position that this interpretation of the MGDPA was consistent with the legislative mandate of applicant privacy so that provision of detailed data, that could identify an applicant, would be avoided.
The MGDPA, at Section 13.43, subdivision 3, deals with how and when data about applicants for public employment, other than undercover law enforcement officers, must be disclosed to the public. The MGDPA links the release of data to the processes used by public entities to fill vacant positions. The MGDPA classifies as public certain specific items of data about all applicants for employment. These specific items include: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. Whenever these elements of data are received in a government entity, or are generated through the entity's application processing procedures, they are public data. However, the name of an applicant for public employment does not become public unless the applicant is certified as eligible for appointment to a vacancy or is considered by the entity's appointing authority to be a finalist for a position.
The legislative treatment of applicant data establishes a policy that gives the public the right to gain access to the data elements listed above for all applicants for public employment. However, these data elements cannot be associated with names of applicants until an applicant reaches a certain point in a public entity's process of considering candidates to fill a vacancy in public employment. When an applicant is certified as eligible for appointment to a vacancy or becomes a finalist, the government entity is required to disclose the applicant's name and the other associated public data listed in Section 13.43, subdivision 3 to the public. This legislative policy protects the privacy of applicants until they are treated as a serious contender for a position in government. The policy advances the public interest by giving the public access to data about the qualifications of all applicants and specific individually identifiable data about those applicants who are considered by the agency to be likely candidates to fill positions.
Section 13.43, subdivision 3 defines "finalist" to mean ". . . an individual who is selected to be interviewed by the appointing authority prior to selection." In this instance, Mr. Anfinson argues, in part because of the incorrect information in the "U News", that the names of the finalists for the presidency of St. Cloud State must be disclosed to the public because the search committee has picked who will be interviewed. However, Dr. MacTaggart points out that in this presidential selection process, the appointing authority is actually the State University Board. According to Dr. MacTaggart, the Board will be interviewing candidates on June 13, 14, and 15 and will actually select the next president of St. Cloud State University on June 15. It would follow from his statement, and from the application of the language in Section 13.43, subdivision 3, that the actual finalists for the job of president are those people who will be selected to be interviewed by the State University Board. The names of those candidates should be made public when the Board decides which candidates it will interview and notifies them of that selection.
However, Dr. MacTaggart states that four candidates, to whom he refers as "semi-finalists", are scheduled to be interviewed by a variety of individuals and groups on the St. Cloud State campus. Following those interviews, the SUB will select finalists from that group of four to be interviewed by the Board. Dr. MacTaggart did not state how many of the four would be selected to be interviewed. He did make it clear that the SUB will select finalists to be interviewed from the group of four and one of those finalists will be the next president of St. Cloud State. He also stated that the SUB considered these four candidates to be finalists for purposes of the MGDPA and that their names had been released to the public.
It is difficult to see how the SUB can reach that conclusion in interpreting Section 13.43 of the MGDPA. The SUB's clear position is that it is the appointing authority. The MGDPA makes its clear that the only candidates whose names become public data are those candidates who are selected to be interviewed by the appointing authority. The process described by Dr. MacTaggart in which, using his words, representatives of the State University Board go from interviewing "semi-finalists" to interviewing "finalists" is a process in which the State University Board itself is the final interviewing and appointing authority. Application of that language of Section 13.43 of the MGDPA to the SCSU presidential selection process leads to a logical conclusion that the candidates whose names become public are only those candidates who are selected to be interviewed by the State University Board. Although the SUB may consider names of the "semi-finalists" to be public and may have advised the candidates who are semi-finalists that their names are public, Section 13.43, subdivision 3 of the MGDPA does not support that result.
As previously discussed, Section 13.43, subdivision 3 does try to make some data about applicants public while at the same time protecting the names of applicants until decisions about their particular applications are made in the employment decision process. Dr. MacTaggart discusses this protective language in terms of it protecting not just the names of candidates but also protecting any data in resumes and applications concerning job history and education and training from which the identity of the candidate could be derived. Although, Section 13.43, subdivision 3 does refer only to names being protected, the SUB's interpretation of the MGDPA is consistent with the underlying policy established by the legislature.
It is clear that the legislature intends to protect applicants from the possible consequences of having it become public knowledge that they are appealing for a particular public job. This protection is in place for some applicants essentially forever, but for other applicants only until the applicant becomes a finalist or his/her name appears on an eligible list. This legislative objective would be frustrated if details about a candidate's job history, education and training, that could identify an applicant just as surely as the release of the applicant's name, were released as part of making the job history, education and training background public. In the words of the statutory interpretation statute, an interpretation of this provision of the MGDPA that would only protect names and not protect other clearly identifying data about an individual would be an absurd result. (See Minnesota Statutes Section 645.17.)
However, in administering the balance that the legislature tries to provide to the rights of applicants and to the public's right to know, a government entity such as the SUB should only strip out details of an applicant's job history, education and training background in those situations where the detailed data could, in the best judgement of the government entity, clearly identify an applicant who is not yet a finalist, who has not yet been certified on an eligible list or who never becomes a finalist or certified. Wholesale stripping of all details of job history, education and training background should not be the practice. Stripping details to protect identify should only be the case where the actual detail in itself or a series of details in combination could reveal the identity of the applicant. Instead of a wholesale practice of stripping all job history, education and training background detail, each applicant's resume or application should be examined to determine if the detail of that resume or application presents a real problem of possible identification. Although this process presents more work for the government entity, it does protect the public interest in finding out as much information as possible as early as possible about applicants for public employment.
The SUB also concludes that the legislature only intends for public entities to reveal "generic" information about applicant's job history, education and training. This conclusion fails to take into account that the legislature also recognizes a strong public interest in assuring that the public and other applicants for public employment should have access to as much detailed data as possible in evaluating a public entity's decisions about selecting individuals to fill vacancies. Without detailed information, it would be virtually impossible for the public and other candidates to compare the actual qualifications of the candidates. The quality and reputation of the college and university from which an individual receives a degree and the size and complexity of an organization in which an individual previously worked can have a great effect on understanding the entity's personnel and salary decisions. In situations where they may be allegations of improper selection, access to detailed information about the job histories, education and training of finalists and eligible candidates can help to dispel or reinforce those allegations.
Based on the correspondence in this matter, my opinion on the issues raised by Mr. Anfinson is as follows:
Debra Rae Anderson
Dated: May 6, 1994