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 person who requested this opinion and the response from the government entity with which the person 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 classified as not public, are available for public access.
On November 6, 1996, PIPA received a letter requesting this opinion from Robert Hill, on behalf of his client "J" (the client will be identified by a pseudonym). Mr. Hill enclosed copies of related correspondence.
In response to Mr. Hill's request, PIPA, on behalf of the Commissioner, wrote to Craig Waldron, Administrator of the City of Oakdale. The purposes of this letter, dated November 8, 1996, were to inform Mr. Waldron of Mr. Hill's request, to ask him or the City'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.
On November 18, 1996, PIPA received a response from Dayle Nolan, attorney for the City. A summary of the detailed facts of this matter follows.
J was a part-time, probationary employee of the City, prior to J's August 28, 1995, termination. According to Mr. Hill, in June 1995, J complained to Mr. Waldron and the City's Community Development Director, Brent Brommer, about another City employee. Mr. Brommer told J that he was aware of some problems, and that he would investigate the situation.
J was asked to attend a meeting with Mr. Waldron and Mr. Brommer on July 12, 1995. At that meeting, they asked J ". . . questions regarding whether [J] had contacted the Mayor regarding the problems [J] observed . . . ." J said s/he did contact the Mayor. According to Mr. Hill, Mr. Waldron responded to J that ". . . by doing so, "it puts the issues on a whole different level." Mr. Hill did not say whether anything else was discussed at that meeting.
In a memorandum dated July 17, 1995, Mr. Brommer wrote to J: "[a]s you are aware, recent problems involving [the other City employee] have disrupted production within the department. Meetings have been held with Administration to get all points of view. . . . Further incidence [sic] related to the above will result in suspension and potentially leading [sic] to termination based on the recommendation and authority of the City Administrator."
In a memorandum dated August 16, 1995, Mr. Brommer and Mr. Waldron informed J that s/he was ". . . placed on administrative leave with pay effective immediately, with the intent to have the Administrator's recommendation to have you dismissed from employment with the City acted upon at the next regularly scheduled Council meeting on August 22, 1995." (Emphasis theirs.)
Further communication between J and the City followed, and subsequently, in a letter dated August 21, 1995, Mr. Brommer wrote to J: "[t]he City can closea meeting for pending litigation. However, we will focus the time for your discussion, thus it is your option if you want it open or closed." (Emphasis his.)
In a letter to the City dated August 22, 1995, J wrote: "I respectfully opt to choose to request an open meeting . . . ." According to Mr. Hill, J's request for an open meeting was denied, and the Mayor and City Council considered the recommendation for J's termination at a "closed door session" at which J was present. According to Mr. Hill, "[a]t the conclusion of this closed door session, the Mayor and members of [the] City Council unanimously vote to terminate [J] . . . ."
In her response to the first issue to be addressed in this opinion, Ms. Nolan wrote that in the July 12, 1995, meeting J had with Mr. Waldron and Mr. Brommer:
Regarding the second issue, Ms. Nolan wrote: "[a]s no private or confidential data was collected from J, it is unnecessary to analyze the application of [Minnesota Statutes Section 13.05, subdivision 4.]"
In response to the third issue, Ms. Nolan wrote:
Minnesota Statutes Section 13.04, subdivision 2, provides the notice requirement commonly referred to as a "Tennessen Warning." When a government entity asks a data subject to provide private or confidential data about her/himself, the entity must inform the individual how it intends to use the data, and for what purpose, whether the individual may legally refuse to supply the data, the consequences of providing or not providing the data, and the identity of others who are authorized by state or federal law to receive the data.
The purpose of the Tennessen Warning requirement is to give sufficient information to an individual from whom a government entity wants to collect data to enable her/him to make an informed choice as to whether s/he wants to provide the data.
Therefore, in order to address the first issue, it is necessary to determine whether J was asked to supply the data to the City, and if so, if the data are about J, and if so, if the data are classified as private or confidential. If those conditions apply, the City was required to give J a Tennessen Warning.
Minnesota Statutes Section 13.43, subdivision 1, provides that "personnel data" are "data on individuals collected because the individual is or was an employee of . . . a state agency, statewide system or political subdivision." Section 13.43, subdivisions 2 and 4, provide that certain data about current and former public employees are public, and that all other personnel data are private.
According to both Mr. Hill and Ms. Nolan, at the July 12, 1995, meeting, J was asked whether s/he had discussed her/his concerns about the other employee with the Mayor. Mr. Hill maintains that the data J was asked to supply were private data. Ms. Nolan disagrees. The Commissioner was provided no detail as to the exact nature and scope of the questions J was asked. If J was asked to provide data about another employee, the City was not required to give J a Tennessen Warning. A Tennessen Warning was required only if J was asked to provide private or confidential data about her/himself. Based on the scant information provided, about which the parties disagree, it appears that J was asked if s/he made contact with the Mayor, which appear to be data about J. From the vague description provided, the data do not appear to be classified as public pursuant to Section 13.43, subdivision 2. Therefore, pursuant to Section 13.43, subdivision 4, it appears that the data J was asked to supply were private personnel data. If that is the case, J should have been given a Tennessen Warning.
In regard to the second issue, Minnesota Statutes Section 13.05, subdivision 4, in relevant part, provides: "[p]rivate or confidential data on an individual shall not be collected, stored, used, or disseminated by political subdivisions, statewide systems, or state agencies for any purposes other than those stated to the individual at the time of collection in accordance with section 13.04, except as provided in this subdivision."
There are strict limitations imposed on a government entity regarding any data it collects without giving the Tennessen Warning 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. Apparently none of the exceptions that are provided in clauses a-e applies in this case. The City may not use the data it collected from J at the July 12, 1995, meeting for any purpose. That conclusion is based on the assumption that J was asked to supply the City with private data about her/himself, absent a Tennessen Warning. If J was not asked to provide private or confidential data about her/himself, Section 13.05, subdivision 4, is not applicable. (For an in-depth discussion of this issue, please see Commissioner's Advisory Opinion 95-028.)
Regarding the third issue, Ms. Nolan questioned the Commissioner's "jurisdiction to render opinions regarding [Section 471.705], the Open Meeting Law." It is the Commissioner's opinion that it is within her jurisdiction. Please see Commissioner's Advisory Opinion 94-033 for a discussion of that point.
Section 471.705, subdivisions 1d (c) and 1d (d), provide that when a public body is meeting for either preliminary consideration of allegations or charges against, or the performance of, an individual subject to its authority, the meeting must be open at the request of the individual who is the subject of the meeting.
J requested that the August 22, 1995, City Council meeting, at which J's termination was discussed and decided upon, be open. Mr. Hill and Ms. Nolan disagree about whether the meeting was open or closed. Depending upon how the notice and posting requirements provided in Section 471.705, subdivision 1c, were handled by the City, the fact that the meeting was not held in Council chambers doesn't mean that the meeting was closed. From the information provided, the Commissioner cannot conclude that the meeting was closed. However, if it was, it should have been open, as J requested.
Based on the correspondence in this matter, my opinion on the issues raised by Mr. Hill is as follows:
2. The City did not give J a Tennessen Warning and, therefore, it may not use the data collected from J at the July 12, 1995, meeting.
3. From the information provided, the Commissioner cannot conclude that the August 22, 1995, City Council meeting was closed. However, if it was, it should have been open as J requested, pursuant to Section 471.705, subdivisions 1d (c) and 1d (d).
Elaine S. Hansen
Dated: December 26, 1996