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:For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data that are not public, are available for public access.
On February 13, 1996, PIPA received a letter requesting this opinion from Mark R. Anfinson, an attorney representing Detroit Lakes Printing, publisher of the Detroit Lakes Tribuneand the Becker County Record, two Minnesota newspapers. In that letter, Mr. Anfinson described his client's attempts to gain access to certain data maintained by the Becker County Sheriff's Office (County). Mr. Anfinson enclosed copies of relevant newspaper articles, and a press release issued by the County.
In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to Thomas Hunt, Becker County Sheriff. The purposes of this letter, dated February 14, 1996, were to inform Mr. Hunt of Mr. Anfinson's request, to ask him or the County's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Anfinson and Mr. Hunt were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)
On February 21, 1996, PIPA received a response from Joseph A. Evans, Becker County Attorney. A summary of the detailed facts of this matter follows.
According to the newspaper articles Mr. Anfinson enclosed, in October 1995, three Becker County jailers were suspended after being accused of misconduct. The Becker County Sheriff asked the Minnesota Bureau of Criminal Apprehension (BCA) to investigate. In December 1995, the BCA report was provided to the Sheriff. As a result of the investigation, two of the jailers were fired, and the third resigned. In addition, a criminal complaint was filed against one of the terminated jailers. According to Mr. Anfinson, all three were covered by a collective bargaining agreement; however, none of the jailers elected to file a grievance.
According to Mr. Anfinson, the editor of the newspapers subsequently requested the specific reasons for the disciplinary actions taken against the jailers, and all the data documenting the actions, pursuant to Minnesota Statutes Section 13.43, subdivision 2. According to Mr. Anfinson, "[t]he county attorney provided copies of the Notices of Discharge issued by the sheriff's office. However, the newspapers' request for data documenting the basis for the action, including the BCA report, was refused; the county attorney cited the fact that criminal charges against one of the jailers were pending, and also the possibility of 'other charges' related to the terminations. Although not expressly cited, it seems evident that the county attorney and sheriff are relying on [Minnesota Statutes Section 13.39 and Section 13.82, subdivision 5.]"
Mr. Anfinson asserted that the data sought by the newspapers, i.e., data documenting the basis of disciplinary action taken by the County against the jailers, are public data, pursuant to Section 13.43, subdivision 2. Mr. Anfinson wrote:
In his response to the Commissioner, Mr. Evans stated that he expected that a trial date for the criminal charge against the jailer is expected to be set in mid-March 1996. Mr. Evans wrote "[i]t is the position of the Becker County Sheriff's Department that the data requested by Detroit Lakes Printing is [criminal] investigative data under [Section 13.82, subdivision 5] and, therefore, classified as confidential or protected non-public. The data directly relates to an ongoing criminal prosecution against one of the jailers." Mr. Evans also stated his concerns that if Mr. Anfinson's position, that the data are public, were accepted, resulting in a release of criminal investigative data prior to completion of a case, it would jeopardize the employee's and the State's rights to a fair trial. Mr. Evans relied upon the provisions of Section 13.82, and not Section 13.39, to support the County's position that the data are not public.
|May data specifically documenting the final disposition of a disciplinary action be withheld on the basis of the investigative data exceptions in Minnesota Statutes Sections 13.39 or 13.82, subdivision 5?|
There is no dispute in this situation that the data in question are a form of government data and are therefore subject to the applicable requirements of Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act. There is a dispute as to what type of data these are and how they are classified for purposes of Chapter 13.
At issue is whether the data are personnel data, under Section 13.43, or criminal investigative data, pursuant to Section 13.82. (The County did not raise the question of the data's classification under Section 13.39; therefore, that issue is not addressed in this opinion.) Mr. Anfinson argues that the relevant provisions of those two Sections are in conflict, and provides arguments to support the newspapers' position that Section 13.43 ought to prevail. The County argues that the requirements of both Section 13.43 and Section 13.82 must be satisfied before the data can be released to the public.
There appears to be no question that the data to which the newspapers seek access were created because the jailers were employed by a government entity, i.e., the County. Therefore, for purposes of Chapter 13, absent the fact of a pending criminal prosecution, these data are personnel data and are classified under Section 13.43. Section 13.43 provides that certain data about current and former public employees are public, and that all other personnel data are private.
Subdivision 2 (a), in relevant part, provides that the following personnel 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; [and] 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. [Emphasis added.]|
Pursuant to Section 13.43, subdivision 2 (b):
|A final dispositionoccurs when the state agency, statewide system, or political subdivision makes its final decisionabout 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. [Emphasis added.]|
Section 13.82, subdivision 5, provides that investigative data, collected or created by a law enforcement agency in order to prepare a criminal case, are confidential or protected nonpublic while the investigation is active. Inactive investigative data are public unless the release of the data would jeopardize another ongoing investigation. Pursuant to Section 13.82, subdivision 5, a criminal investigation becomes inactive if: the agency decides not to pursue the case; or the statute of limitations expires, or 30 years have elapsed since the commission of the offense, whichever comes earliest; or all rights of appeal by a person convicted on the basis of the investigative data have expired or been exhausted. Also, pursuant to Section 13.82, subdivision 5, investigative data presented as evidence in court are public data.
In the case of two of the three jailers, the issue of the classification of the data in question is easily resolved. According to the information provided to the Commissioner, one of the two resigned, the other was fired, and it is not likely that either of them will be prosecuted. Pursuant to Section 13.43, subdivision 2, the County appears to have made its final decision regarding disciplinary action, and as neither employee elected to file a grievance within the time requirements, there has been a final disposition of disciplinary action taken against those two jailers. Therefore, pursuant to Section 13.43, subdivision 2, the specific reasons for any disciplinary action taken against them, e.g., suspension and/or termination, and the data documenting the basis for the disciplinary action, including data in the BCA report, are public.
The third jailer was fired, and now faces criminal prosecution. This employee also did not grieve the disciplinary action. On its face, this case presents a situation in which the provisions of Sections 13.43 and 13.82 might appear to be in conflict. Under Section 13.43, the data would be public; under Section 13.82, the data would be confidential or protected nonpublic until the criminal case is resolved. However, the Legislature amended Section 13.43 in 1990, following a Minnesota Supreme Court decision, Annandale Advocate v. City of Annandale, 435 N.W. 2d 24, (Minn. 1989). 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.
In Annandale, the Court found that a final decisionof the City was not the final dispositionof 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 Annandale at 29.) Subsequently, 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 "regardless of the possibility of any later proceedings or court proceedings." (See Laws of Minnesota, 1990, Chapter 550, Section 1.)
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, regardless of the possibility of any later proceeding or court proceedings. As is the case with the jailers who will not be prosecuted, the County has made its final decision regarding disciplinary action of the jailer who will be prosecuted. That employee also did not elect to file a grievance. Therefore, according to the plain words of the statute, there has been a final disposition of disciplinary action, and, regardless of any court proceeding, the data sought by the newspapers about the jailer facing criminal charges are also public.
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 5, recognized that law enforcement agencies, under certain circumstances, need to be able to withhold data from public disclosure in order to protect an active criminal investigation. The Commissioner recognizes that confusion exists regarding the interaction of the relevant provisions of Sections 13.43 and 13.82. However, the effect of the 1990 amendment to Section 13.43, subdivision 2, is that once a government entity makes its final decision regarding disciplinary action of a public employee, and once there has been a final disposition of that disciplinary action, those data are public, regardless of the possibility of any later proceedings, including court proceedings.
Had the County deferred making its final decision regarding disciplinary action against the jailer 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 5. However, the County made its final decisionregarding disciplinary action prior to the criminal proceeding, and there has been a final dispositionof that disciplinary action. Therefore, according to the language of Section 13.43, subdivision 2, the disciplanary data in question are public.
Based on the correspondence in this matter, my opinion on the issue raised by Mr. Anfinson is as follows:
|There has been final disposition of the disciplinary actions taken against the County's employees; therefore, pursuant to Section 13.43, subdivision 2, the specific reasons for and data documenting the basis of the disciplinary actions are public data, regardless of the possibility of any later proceedings, including court proceedings.
Elaine S. Hansen
Dated: April 3, 1996