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 August 18, 2006, IPAD received a letter dated same, from Mark Anfinson, an attorney representing the Marshall Independent. 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.
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.
A summary of the facts as provided by Mr. Anfinson is as follows. In his opinion request, Mr. Anfinson wrote:
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. § 13.43, subd. 3, and the city did disclose their names to the newspaper.
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.
Mr. Anfinson provided copies of related email correspondence he had with Mr. Johnson and Mr. Simpson.
In an email dated August 4, 2006, Mr. Simpson wrote to Mr. Anfinson:
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.
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.
In an email dated August 7, Mr. Anfinson responded:
. . . 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.
Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue:
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."
In his comments to the Commissioner, Mr. Simpson wrote:
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, . . .
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 . . .
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 . . .
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 . . .
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.
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.
Based on the facts and information provided, my opinion on the issues that Mr. Anfinson raised is as follows:
Dana B. Badgerow
Dated: October 2, 2006