Advisory Opinion 05-012

Facts and Procedural History:

On January 25, 2005, IPAD received a letter dated same, from X, an employee of Faribault County. In X's letter, s/he asked the Commissioner to issue an advisory opinion regarding X's right to gain access to certain data that the County maintains.

IPAD, on behalf of the Commissioner, wrote to Brenda Ripley, Director of County Personnel and Data Processing, in response to X's request. The purposes of this letter, dated February 1, 2005, were to inform her of X's request and to ask her to provide information or support for the County's position. On February 18, 2005, IPAD received a response, dated same, from Susan Hansen, an attorney representing the County.

A summary of the facts as provided by X is as follows. In his/her opinion request, X wrote:

On [date removed] I gave my supervisor... a letter response to a written reprimand. Later that day I received a call from a local newspaper asking me what they were supposed to do with my letter. Without my knowledge or consent, a County employee had faxed my letter to the newspaper. I asked the paper not [sic] publish the letter and to fax the letter to me, which they did immediately... .I did not know who Sue Hansen (the post-it on the fax) was or why the County would send my letter to her or to the newspapers...

The next business day [date removed] I provided a written demand letter to the County, asking that any copies of the [letter response to the written reprimand] provided to newspapers or others be immediately retrieved.On [date removed] I received an email from the County Personnel Director responding to my letter. According to the County, my letter was faxed to the newspaper by mistake.

Also in X's letter, s/he stated, I wish to clarify that there has been no final disposition of this matter.

X attached to the opinion request a copy of his/her response to the reprimand, a copy of his/her letter to the County regarding the newspaper's receipt of the response to the reprimand, a copy of the newspaper employee's email explanation of what happened, and a copy of the County Personnel Director's email apology.

Issue:

Based on X's request for an opinion, the Commissioner agreed to address the following issue:

Was Faribault County in compliance with Minnesota Statutes, Chapter 13, when it disseminated to the public a copy of a document containing data about an employee?

---

Discussion:

Government data about current and former employees are classified at Minnesota Statutes, section 13.43. Subdivision 2 of section 13.43 lists the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private.

In a situation where someone has complained about an employee, the existence and status of the complaint or charge are public. (See 13.43, subdivision 2(a)(4).) If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public: the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action. (See section 13.43, subdivision 2(a)(5).) A final disposition occurs when:

...[the government entity] makes its final decision about 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....

(See section 13.43, subdivision 2(b).)

In her comments to the Commissioner, Ms. Hansen wrote:

On [date removed] X was issued a written reprimand. [Fifteen calendar days later], X submitted a letter to [his/her] supervisor in response to the written reprimand (hereafter X's letter ). The supervisor provided a copy of X's letter to the County's personnel Director. The Personnel Director then attempted to transmit X's letter to [Ms. Hansen]. [Ms. Hansen's office] serves as Faribault County's labor and employment law attorneys. When the Personnel Director placed X's letter on the facsimile machine for transmission to [Ms. Hansen] the Personnel Director inadvertently touched the wrong speed dial number on the facsimile machine. Specifically, instead of touching the speed dial number for the office of [Ms. Hansen], the Personnel Director touched the speed dial number for the Wells Mirror and Shopper newspaper.

Ms. Hansen explained that only one employee at the newspaper saw the letter. The employee, after calling the number listed at the top of the facsimile, faxed the letter back to the County and destroyed the copy in the newspaper's possession. The employee then submitted an email to the County's Personnel Director describing the events.

Ms. Hansen also stated that the actions of the Personnel Director were not deliberate or willful. She wrote:

Instead, the Personnel Director's actions were inadvertent, accidental and in error. The Personnel Director apologized to X for this error... In order to prevent such an error from occurring by chance again, the County has deleted its labor attorney's facsimile number from the speed dial function on its facsimile machine.

Ms. Hansen also commented on the issue of whether or not there had been a final disposition for purposes of Chapter 13. She wrote:

The original [date removed] written reprimand that was issued to X was not grieved pursuant to the grievance procedure of the collective bargaining agreement between Faribault County and [the exclusive representative of X]. Therefore, based upon the failure of X to elect arbitration within the time provided by the collective bargaining agreement, a final disposition regarding this disciplinary action has occurred... The final disposition of this disciplinary action, together with the specific reasons for the action and data documenting the basis of the action, are therefore public data...

The Commissioner has the following comments. There is a disagreement between the parties as to whether or not a final disposition has occurred and the Commissioner does not have enough information to determine which is the case. However, it appears the classification of the data in X's response letter can be determined, irrespective of this question. If a final disposition has not occurred, the data are private pursuant to section 13.43, subdivision 4. If a final disposition has occurred it appears the data also are private. Pursuant to section 13.43, subdivision 2(a)(5), when a final disposition has occurred, the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action... are public. Here, it does not appear that data in X's response letter constitute specific reasons for the County's disciplinary action and/or data documenting the basis of the disciplinary action.

Thus, assuming the data in the response letter are private, the County was not in compliance with Chapter 13 when it faxed a copy of the letter to the Wells Mirror and Shopper. The Commissioner notes, however, that while the County's dissemination technically is a violation of Chapter 13, the County has admitted it made a mistake, has apologized to X, and has taken a positive step toward ensuring that such a mistake will not happen again.

---

Opinion:

Based on the facts and information provided, my opinion on the issue that X raised is as follows:

It does not appear Faribault County was in compliance with Minnesota Statutes, Chapter 13, when it disseminated to the public a copy of a document containing data about an employee.

Signed:

Dana B. Badgerow
Commissioner

Dated: March 21, 2005

---