Advisory Opinion 06-019

Facts and Procedural History:

On April 14, 2006, IPAD received a letter dated same, from Cindie Charest. In her letter, Ms. Charest asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the Minnesota Department of Labor and Industry. The Commissioner required clarification that Ms. Charest provided on April 26, 2006.

IPAD, on behalf of the Commissioner, wrote to Scott Brener, Commissioner of the Department, in response to Ms. Charest's request. The purposes of this letter, dated May 2, 2006, were to inform him of Ms. Charest's request and to ask him to provide information or support for the Department's position. On May 10, 2006, IPAD received a response, dated same, from Nancy Leppink, General Counsel for the Department.

A summary of the facts is as follows. In her opinion request, Ms. Charest provided copies of certain documents.

In a letter dated December 13, 2005, Ms. Charest wrote to the Department:

Pursuant to your letter of October 28, 2005, you stated that upon completion of findings, all documents regarding my file(s) would be available to me.

Now that your audit is complete, please provide me with the report of findings on my file(s), as well as all document considered evidence in the file, as well as letters to the opposing party

In a letter dated December 15, 2005, the Department responded:

In regard to your request for documents in the case file, I have been advised that those documents must be reviewed by the data privacy staff for redaction purposes. They will be forthcoming after the review, hopefully mailed by the end of the day on December 16, 2005.

Apparently, on December 23, 2005, an attorney with the Department spoke by telephone with Ms. Charest and informed her that the data she had requested were private. In her comments to the Commissioner, Ms. Leppink wrote, [the staff attorney] spoke with Ms. Charest and advised her that the data she requested was protected under Minn. Stat. section 13.39 as protected nonpublic and confidential data and could not be provided to her. At Ms. Charest's request, Ms. O'Neil agreed to put the Department's determination in writing.

In a letter dated December 30, 2005, the Department stated, It is the Department's position that the documents you requested are civil investigative data under Minnesota Statutes, section 13.39.The department will notify you in writing when the documents you requested become public.

In a letter dated March 1, 2006, the Department wrote to Ms. Charest and advised that the original order has been rescinded. The Department further stated, The file is closed effective March 1, 2006, and has been referred to our legal services unit for review to determine public and private data.

In a letter dated March 14, 2006, the Department wrote to Ms. Charest:

Enclosed please find the public data maintained by the [Department] that is responsive to your data practices requests. The names, social security numbers and payroll data of other individuals employed by [the former employer] have been redacted from the documents provided to you. This data is not public pursuant to the protections set out in Minnesota Statutes, section 13.355 and section270B.01-.02 (2004). In addition, data that is protected by the attorney client privilege has also been redacted from the documents pursuant to Minnesota Statutes section 13.393.

In her comments to the Commissioner, Ms. Leppink provided the following synopsis of the events leading to Ms. Charest's opinion request:

In March of 2005, the Labor Standards Unit (LSU) of the Department received a wage claim from [Ms. Charest] alleging her former employer had failed to pay her all of the wages she owed her. Upon receipt of Ms. Charest's wage claim, the LSU initiated an investigation to determine whether [the former employer] failed to pay Ms. Charest wages in accordance with Minnesota's wage and labor laws. [In July 2005] the Department issued an Order to Comply: Labor Law Violation that the employer contested [in August 2005]. After receipt of the employer's contest, the LSU expanded its investigation to include additional employees formerly employed by the [employer]. Ultimately, the LSU concluded, based on employment records collected during its investigation, that it could not establish that [the former employer] had violated Minnesota's wage and hour laws in the payment of wages to her employees including Ms. Charest. After consulting with the Department's general counsel, Nancy Leppink and a staff attorney the LSU decided not to pursue further administrative action against the employer, rescinded its Order to Comply: Labor Law Violation, and closed its investigation file on March 1, 2006. The data collected during its investigation of Ms. Charest's wage claim includes data on several individuals including Ms. Charest and also data not on individuals.

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Issue:

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

Did the Minnesota Department of Labor and Industry comply with Minnesota Statutes, Chapter 13, regarding a December 13, 2005, request for access to data?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

In her comments to the Commissioner, Ms. Leppink wrote, When the Department received Ms. Charest's December 13, 2005 letter it determined that the data Ms. Charest was requesting was protected under Minn. Stat. section 13.39 and was either protected nonpublic data or confidential data.

Section 13.39, subdivision 2, states that data collected by government entities as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action are classified as confidential (data on individuals) and protected nonpublic (data not on individuals).

Subdivision 1 of section 13.39, states, A 'pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the [government entity]. Generally, when an investigation becomes inactive, the data are public. (See section 13.39, subdivision 3.)

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

the Supreme Court held in Westrom v. Minnesota Dept. of Labor and Industry, 686 N.W.2d (Minn. 2004), that even data created by the Department is protected by section 13.39 when it is inextricably linked to and [is] the product of the data collected by DOLI during its investigation. 686 N.W.2d at 34.

Under Minnesota Statutes, section 177.27, subd. 1, the Commissioner has the authority to investigate wage claims or complaints by an employee against an employer if the failure to pay a wage may violate Minnesota law or an order or rule of the Department. Further, the Commissioner may issue an order requiring an employer to comply with any of the provisions of Minn. Stat. 177 and certain provisions of Ch. 181. Minn. Stat. section 177.24, subd.4 (2004).

The data requested by Ms. Charest had been collected or created by the Department as part of its investigation initiated by her wage claim for purposes of the commencement of a pending civil legal action, and at the time of her request was being retained by the Department in anticipation of a pending civil legal action. At the time Ms. Charest submitted her request, the Department had issued the Order to Comply and it had been contested by the employer. Unless and until the order was rescinded or settled, the Department was required to proceed to an administrative hearing. The Supreme Court in Westrom made clear that the statutory requirement that the Commissioner refer the contest for an administrative hearing fit within the definition of pending civil legal action and any investigative data collected by the agency would need to be retained in anticipation of that pending civil legal action 686 N.W.2d at 36. Consequently, based on the language of Minn. Stat. section 13.39 and the Minnesota Supreme Court's decision in Westrom, the Department determined that the data requested by Ms. Charest was protected nonpublic data and confidential data and could not be provided to [her].

Upon rescission of the Order to Comply and the closing of the investigative file on March 1, 2006, the Department determined that the data requested by Ms. Charest was, as of that date, inactive civil investigative data.

[The data then were] reviewed by [a Department staff attorney] in order to determine whether any data in the file continued to be not public data. Based on this review the Department determined that the following data remained not public data: (1) The names, social security numbers and payroll data of individuals other then [sic] Ms. Charest, who had been employed by [the former employer] pursuant to the protections set out in Minnesota Statutes section 13.355 and section 270B.01-02 (2004) and (2) data that is protected by the attorney client privilege pursuant to Minnesota Statutes section 13.393.

The Commissioner has the following comments. Ms. Charest requested data in a letter dated December 13, 2005. She is the subject of some of the requested data, but not all. Regarding the data of which Ms. Charest is not the subject, pursuant to section 13.03, and Minnesota Rules, section 1205.0300, the Department is required to respond in an appropriate and prompt manner and within a reasonable time. Regarding the data of which Ms. Charest is the subject, the Department is required to respond within ten business days. Apparently, on December 23, 2006, the Department advised Ms. Charest during a telephone conversation that the data she requested were classified as not public pursuant to section 13.39. The Department's response, thus, was timely. Further, the Commissioner agrees with the Department's position that the data were classified as not public during the time the investigation was active.

When the investigation became inactive, however, the data became subject to the general presumption in section 13.03, subdivision 1, and are public unless otherwise classified. According to the Department, the investigation became inactive on March 1, 2006. At that time, Ms. Charest's data request remained before the Department and the Department was required to respond in the manner discussed above.

In reviewing the Department's position regarding the data in the inactive file, the Commissioner agrees, in part, and disagrees, in part. First, pursuant to section 13.355, the Social Security numbers of individuals other than Ms. Charest are private data about those individuals and not accessible to Ms. Charest.

Second, given the nature of the dispute between the Department, Ms. Charest, and her employer, it is possible that certain of the data requested by Ms. Charest fall under the exemption in section 13.393. However, because the Commissioner has not seen the data, she cannot comment on the appropriateness of the Department's determination. For additional guidance on the operation of section 13.393, see Advisory Opinion 05-009.

Finally, the Commissioner disagrees with Ms. Leppink's assertion that Minnesota Statutes, section 270B.02 classifies data in the investigative file as private. Chapter 270B applies to tax return information collected and maintained by the Minnesota Department of Revenue. The wage data Ms. Leppink provided to the Commissioner as part of her response to Ms. Charest's opinion request appear to be time sheet information submitted to the Department by the estate of Ms. Charest's former employer. To the best of the Commissioner's knowledge, these are not data that were provided to the Department (of Labor and Industry) by the Department of Revenue. Therefore, the wage data cannot be protected pursuant to section 270B.02, and are subject to the general presumption in section 13.03, subdivision 1.

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Opinion:

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

The Minnesota Department of Labor and Industry did not comply with Minnesota Statutes, Chapter 13, regarding a December 13, 2005, request for access to data, when it withheld data pursuant to Minnesota Statutes, section 270B.02.

Signed:

Dana B. Badgerow
Commissioner

Dated: June 9, 2006

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