Advisory Opinion 05-019
May 16, 2005; Winona Housing and Redevelopment Authority
Background & Issues
The Winona Housing and Redevelopment Authority investigated a complaint against its employees, during which an investigator took notes and summarized an interview with the complainant. Because no disciplinary action was taken against the employees, the investigation files remained private personnel records. The authority asked whether it could give the complainant access to the investigator's notes and interview summaries without violating state data privacy laws.
Commissioner Decision
The Commissioner determined that the authority cannot release the investigator's notes and summaries to the complainant. These documents are private personnel data about the employees being investigated and do not qualify as statements provided by the complainant.
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Excerpted Ruling / ConclusionBased on the facts and information provided, my opinion on the issue that Ms. Goering raised is as follows:
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).
May 16, 2005; Winona Housing and Redevelopment Authority
5/16/2005 10:14:43 AM
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 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. 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). 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. She wrote: . . . 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. 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. Issue:Based on Ms. Goering's request for an opinion, the Commissioner agreed to address the following issue:
Discussion: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. 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. 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. Section 13.43 does not define statement. The definition of that term in The American Heritage College Dictionary, 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. 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. Section 13.43, subdivision 2(d), provides a complainant with access to the statement the complainant providedto 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. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Goering raised is as follows:
Signed:
Dana B. Badgerow
Dated: May 16, 2005 |