Advisory Opinion 07-004

Facts and Procedural History:

On December 6, 2006, IPAD received a letter dated December 5, 2006, from Ann Walther, an attorney representing the Police Officers Federation of Minneapolis. In her letter, Ms. Walther asked the Commissioner to issue an advisory opinion regarding the Federation's right to gain access to certain data from the City of Minneapolis.

IPAD, on behalf of the Commissioner, wrote to Craig Steiner, the City's Responsible Authority for Data Practices, in response to Ms. Walther's request. The purposes of this letter, dated December 14, 2006, were to inform him of Ms. Walther's request and to ask him to provide information or support for the City's position. On December 19, 2006, IPAD received a response, dated same, from Mr. Steiner.

A summary of the facts is as follows. In a letter dated October 17, 2006, Ms. Walter asked to inspect the following data:

All electronic mail, written correspondence or other documents sent or received by the following elected officials regarding: 1) the Police Officers' Federation of Minneapolis ( Federation ); 2) any member of the Federation Board . . . 3) the Minneapolis Civilian Review Authority ( CRA ) or 4) the CRA Work Group:

Councilmember Betsy Hodges
Councilmember Elizabeth Glidden
Councilmember Ralph Remington
Mayor R.T. Rybak

Ms. Walther specified, The scope of this request applies to all data sent or received since January 1, 2006.

In a letter dated November 15, 2006, Mr. Steiner responded and apparently provided Ms. Walther with some of the data she requested. He noted that certain data had been redacted pursuant to sections 13.43 and 13.601.

In an email dated November 16, 2006, Ms. Walther wrote regarding the portions the City had redacted pursuant to section 13.43. She stated, . . . I am requesting that you provide me with the name of the employee whose personnel data it is. The name of the employee is public information.

In another email dated November 16, 2006, Ms. Walther wrote, . . . I would like the names of the 'individuals' with whom each councilmember communicated which resulted in their declaring the data non-public under section 13.601. I would also like the names of all employees whose private personnel data was 'removed'.

In an email dated December 1, 2006, Mr. Steiner responded:

In response to your request for the names of the employees whose information was redacted or removed from the previously requested data, names of personnel are private data in the context of internal e-mail communications about their performance pursuant to Minn. Stat. section 13.43 subd. 2.

In response to your request for the names of the persons who corresponded with the Council Members, which resulted in the invocation of the correspondence privilege, Minn. Stat. section 13.601 subd. 2 makes correspondence between elected officials and individuals private. The names of other individuals are part of the correspondence and are therefore private.

Issues:

Based on Ms. Walther's opinion request, the Commissioner agreed to address the following issues:

Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails? Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of persons who corresponded with Council Members Glidden and Remington?

---

Discussion:

Issue 1

Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails?

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. Data on individuals about current and former employees are classified by Minnesota Statutes, section 13.43. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.

In his comments to the Commissioner, Mr. Steiner wrote:

In her letter to the Commissioner, Ms. Walther argues that the names of employees are always public. The City acknowledges her argument that [section 13.43, subdivision 2(a)(1)] provides that the name of an employee is public. However, the City disagrees that the name of an employee is public in all contexts. In certain contexts, identifying the name of an individual might result in the disclosure of private data. In such a case, the name cannot be released. For example, if a request for public data asked for the number of allegations of employee theft in the past year and also the name of any employee who had a complaint or charge against them during that same time period, and, if, in the hypothetical situation, the only complaint or charge against an employee received by the government entity during the relevant time period related to a single charge of an employee theft against a known employee, then release of the name would identify the nature of a complaint made (this example assumes that there has been no final disposition of a disciplinary action [and that the nature of the complaint is private data]). [Emphasis provided.]

In the present context, the e-mails in question between elected officials related to their concerns that Police Department disciplinary practices or procedures may be deficient and/or their concerns that police administration was not imposing appropriate discipline in certain cases. In the context of these e-mails, identifying the employee would have resulted in providing private personnel data about the named employees, specifically the internal debate about the appropriateness of discipline or lack thereof for that particular employee. . . .

The Commissioner agrees with Mr. Steiner and adds the following. Section 13.43 provides that certain data on individuals are public and some are private. An employee's name is one of the types of data that is listed as public. However, the fact that certain personnel data are private means there are situations in which an employee's name cannot be released because pairing the data with the employee's name would release data about that employee that are classified as private by section 13.43. Here, Mr. Steiner states that some of the requested data contain private data about City employees. Therefore, the data are not accessible to Ms. Walther.

Issue 2

Did the City of Minneapolis comply with Minnesota Statutes, Chapter 13, when it refused to provide the names of persons who corresponded with Council Members Glidden and Remington?

Section 13.601, subdivision 2, provides that correspondence between individuals and elected officials are private data on individuals, but may be made public by either the sender or the recipient.

In his comments to the Commissioner, Mr. Steiner wrote:

. . . the City maintains that the purposes of Section 13.601 would be dramatically undermined if the identity of the correspondent with elected officials needed to be disclosed. Ms. Walther has argued that by failing to disclose the identity, the City is able to disguise whether the correspondent is a public employee and thereby allegedly misusing Section 13.601.

The City is not invoking Section 13.601 improperly, nor are we seeking to hide the fact that the correspondent is a City employee. However, the context of the e-mails make [sic] it clear that the correspondent was acting as a citizen exercising First Amendment rights to petition elected officials. . . . From the context of the e-mails and consistent with the Commissioners' opinion, 98-052; as Responsible Authority I made a determination that the employee was acting as a private citizen in sending the e-mails. Admittedly, the employee used the City e-mail system to communicate with the Council Members, but the City's Electronic Communications Policy allows for limited personal use of the e-mail. . . .

In Advisory Opinion 98-052, the Commissioner discussed a situation in which the Clay County Sheriff wrote a letter to the Chair of the County Board. The Commissioner wrote:

. . . if Sheriff Costello wrote the letter as an individual, rather than in his capacity as the Clay County Sheriff, the data can be classified as not public under [section 13.601]; but, if Sheriff Costello wrote the letter in his capacity as the Sheriff as part of his work, the data are presumed public unless classified otherwise by statute or federal law.

Here, the Commissioner has not seen the data in question. Mr. Steiner states that the employees, acting in their capacities as citizens, not as employees of the City, wrote to the elected officials. Assuming this is the case, the City properly withheld the data in the emails.

---

Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Walther raised is as follows:

The City of Minneapolis complied with Minnesota Statutes, Chapter 13, when it refused to provide the names of employees whose private personnel data was either removed or redacted from council members' and the Mayor's emails. Assuming the employees were acting as citizens, not as government employees, when they wrote to the elected officials, the City of Minneapolis complied with Minnesota Statutes, Chapter 13, in withholding data in certain emails pursuant to section 13.601.

Signed:

Dana B. Badgerow
Commissioner

Dated: January 22, 2007

---