Advisory Opinion 07-026

Facts and Procedural History:

On August 21, 2007, IPAD received a letter, dated August 16, 2007, from Soren M. Mattick, an attorney, on behalf of the City of Zimmerman. In his letter, Mr. Mattick asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. IPAD requested clarification and additional information, which Mr. Mattick provided in a letter dated September 13, 2007, and a revised opinion request dated October 16, 2007. In his submissions to IPAD, Mr. Mattick provided copies of the data at issue.

In response to Mr. Mattick's request, IPAD, on behalf of the Commissioner, wrote to Brandon M. Fitzsimmons, an attorney, on behalf of his client, Gregory A. LaFond, former City Administrator. The purpose of this letter, dated October 22, 2007, was to invite him to submit comments, which he did in a letter dated October 30, 2007. (Mr. Fitzsimmons had asked the Commissioner to address the same issue in a request dated September 14, 2007.) A summary of the facts as Mr. Mattick presented them follows.

Mr. LaFond served as City Administrator until February of 2007; in that role he supervised Ms. Molitor, the former Deputy Clerk. On September 15, 2006, the City Council met to consider allegations against Ms. Molitor, and voted to terminate her employment, effective September 18, 2006. At the meeting, Ms. Molitor submitted a letter regarding the allegations to the City Council.

Mr. Mattick wrote:

Following Ms. Molitor's termination, Mr. LaFond wrote a series of memoranda to the Mayor, City Council, Department Heads, and me. These memoranda ( the Memos ) were all written between September 19, 2006 and September 25, 2006. In the Memos, Mr. LaFond responded to various allegations that Ms. Molitor raised in her September 15 letter and statements that she made during the closed session.

According to Mr. Mattick, in June of 2007, Mr. LaFond requested access to data related to the City's decision to terminate Ms. Molitor's employment. The City complied with part of his request, and denied him access to the data at issue, namely the memos Mr. LaFond authored and submitted to the City subsequent to the effective date of Ms. Molitor's termination. The City stated to Mr. LaFond that the data contained in the memos are private under Minnesota Statutes, section 13.43.

In his comments to the Commissioner, Mr. Mattick stated that the data in the memos are private personnel data about both Mr. LaFond and Ms. Molitor. He wrote: [o]rdinarily, the subject of the data must be given access to the public and private data stored on him. See Minn. Stat. section 13.04, subd. 3. The Memos present a more complicated problem because Mr. LaFond and Ms. Molitor are both data subjects and much of the data is about both of them.

Mr. Mattick discussed the applicability of Northwest Publications v. City of Bloomington, 499 N.W.2d 509 (Minn. Ct. App. 1993), and Advisory Opinions 04-014 and 96-002.

Mr. Fitzsimmons stated his agreement that the memos contain data about both Mr. LaFond and Ms. Molitor, but asserted that, for various reasons, the data are public.

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Issue:

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

Did the City of Zimmerman comply with Minnesota Statutes, Chapter 13, when it denied access to memos relating to the dismissal of a City employee?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, government data are public unless otherwise classified. Private data are accessible to the subject of the data, and others who have specific authority granting them access. (See section 13.02, subdivision 12; section 13.04 and Minnesota Rules, part 1205.0400, subpart 2.)

Section 13.43 classifies data on individuals who are current or former employees of a government entity. Subdivision 2 lists the types of personnel data that are public and subdivision 4 classifies most other types of personnel data as private.

When a government entity has taken disciplinary action against an employee and a final disposition has occurred, the following data are public under subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action.

According to Mr. Mattick, the City took final disciplinary action against Ms. Molitor when it fired her. There is no dispute that the first of the memos was created the day after the effective date of Ms. Molitor's termination, and the others were created subsequently.

Mr. Fitzsimmons stated that because the memos contain Mr. LaFond's responses to Ms. Molitor's September 15 letter, which the City has determined is public in connection with her termination, the data in the memos are public. The Commissioner respectfully disagrees. The data at issue were created after the City fired Ms. Molitor. Thus, those data cannot be data that document the basis of final disciplinary action. The City could not have based its decision about disciplinary action on data that did not exist at the time it made its decision.

Mr. LaFond is entitled to gain access to data in the memos only if the data are public, or are private data of which he is the sole subject. The fact that Mr. LaFond authored the memos does not itself give him the right to gain access to them. When he was employed by the City, his work assignment could reasonably have required that he should get access, per Minnesota Rules, part 1205.0400, subpart 2. As a former employee, however, he has no greater right to gain access to private data about another employee than any other member of the public.

The Commissioner has opined previously in numerous opinions that government entities are in the best position to determine the subject(s) of the data they maintain. As Mr. Mattick noted, the Commissioner addressed the issue in 04-014:

When a government entity is faced with redacting a document containing not public and public data, it is important for the entity to review the document carefully to determine whether the release of any of the data may result in the inappropriate release of not public data. Government entities are in the best position to make such determinations because they have all of the relevant information and are knowledgeable about the circumstances.

In Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509 (Minn.App. 1993), the Minnesota Court of Appeals held that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. The Commissioner has addressed similar issues in other advisory opinions. (See 03-018, 03-001, 00-065, 96-002, and 94-034.)

Therefore, if it is not possible for the District to appropriately redact the document, it may withhold the entire document. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, Inc., maintains that denial of access of data should occur only in situations where it is impossible to separate or redact the data appropriately. Given the clear presumption of openness in Chapter 13, the District should make every effort to avoid a situation where it must withhold an entire document from the public. The Commissioner adds that the District must disclose any public data in the document, including, pursuant to section 13.43, subdivision 2(a)(4), that a complaint was made against a member of the administration, the status of the complaint, and the name of the employee about whom the complaint was made.

In his opinion request, Mr. Mattick wrote:

Here the City examined the memos and concluded that it would be impossible to redact the Memos. Because of the nature of the dispute between the two data subjects discussed in the memos, the data that each would ordinarily be entitled to as data subjects is so intertwined with other private personnel data that redaction is not a plausible solution. Further, as the Commissioner advised, the City is in the best position to make this determination. Accordingly, the City properly denied Mr. LaFond's request.

Upon cursory examination of the data at issue, the Commissioner has the following comments. The memos contain data about Mr. LaFond, Ms. Molitor, and other City employees, which are presumptively private under section 13.43. At least some of the same data appear to be about both Mr. LaFond and Ms. Molitor, such that the Commissioner could not determine a single data subject. Therefore, while she cannot state with certainty that the City's determination regarding all of the data in the memos is correct, the Commissioner believes it is reasonable for the City to take the position that the memos contain data that are inextricably intertwined, making redaction impossible. As she has opined previously, in situations like this one, government entities are in the best position to make those determinations.

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Opinion:

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

The City of Zimmerman complied with Minnesota Statutes, Chapter 13, when it denied access to memos relating to the dismissal of a City employee, if the data in the memos are inextricably intertwined, making redaction impossible.

Signed:

Dana B. Badgerow
Commissioner

Dated: December 3, 2007

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