Advisory Opinion 03-045

Facts and Procedural History:

On September 10, 2003, IPAD received a letter from Johnny Villareal, Contract Organizer for Service Employees International Union, Local 284. In his letter, Mr. Villareal asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data maintained by Independent School District 271, Bloomington. Mr. Villareal's request required clarification with IPAD staff.

In response to Mr. Villareal's request, IPAD, on behalf of the Commissioner, wrote to Gary Prest, District Superintendent. The purposes of this letter, dated September 23, 2003, were to inform him of Mr. Villareal's request and to ask him to provide information or support for the District's position. On October 8, 2003, IPAD received a response from James K. Martin, Executive Director of Human Resources for the District. A summary of the facts of this matter follows.

According to Mr. Villareal, in February 2003, Local 284 made a complaint against a District employee. Subsequently, Mr. Villareal asked for access to public data concerning disciplinary action taken against the employee.

In a letter dated June 30, 2003, Mr. Martin responded to Mr. Villareal: [t]here is no public information, as it is defined by the Minnesota Government Data Practices Act, that is responsive to your request. The District took appropriate action in regard to the situation that you cite in your letter of June 24, 2003. When Mr. Villareal sought clarification, Mr. Martin wrote, on August 4, 2003:

From the request in your letter, your position appears to be that because an investigation occurred, the results, regardless of whether discipline occurred or not, are public information. I disagree.

A complaint was filed against [the employee] by one of the District's mechanics. The matter was investigated and appropriate action taken against [the employee.] As I informed you in my July 21 letter, the appropriate action taken against [him/her] is private data as defined by the Data Practices Act. I therefore, cannot provide you with details of said action.

Once again, the reason the appropriate action taken against [the employee] is not public is because it does not meet the definition of 'public information' set forth in Minn. Stat. Section 13.43.

In his comments to the Commissioner, Mr. Martin stated that the complaint against the employee was investigated, and, at the conclusion, the employee was given a non-disciplinary warning letter. Mr. Martin provided the Commissioner with a copy of that letter. Mr. Martin stated that because the letter did not constitute disciplinary action, the contents of the letter are private data, pursuant to Minnesota Statutes, section 13.43.

Issue:

In his request for an opinion, Mr. Villareal asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes, Chapter 13, did Independent School District 271, Bloomington, respond appropriately to a request for public data related to a complaint made against a District employee?

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Discussion:

Data about public employees are classified at Minnesota Statutes, section 13.43. Pursuant to subdivision 2, certain personnel data are public; under subdivision 4, all other personnel data are private. The following data related to and stemming from complaints and/or charges made about employees are classified as public:

the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action; [see subdivision 2(a)(4)]

the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body. [See subdivision 2(a)(5).]

Final disposition is defined at subdivision 2(b).

The essence of these provisions is that more data become public when and if a final disposition of a disciplinary action occurs. If no final disposition occurs, very limited data are public. Thus, if no disciplinary action is taken, there cannot be a final disposition of disciplinary action, and therefore only those data relating to the existence and status of any complaints or charges are public.

In Advisory Opinion 01-072, the Commissioner opined:

When a government entity takes disciplinary action against an employee, certain data become public when the disciplinary action is final for purposes of section 13.43, subdivision 2(b).

The classification of the letter depends, therefore, on whether the letter constitutes disciplinary action and, if so, whether a final disposition occurred regarding the disciplinary action. Because Chapter 13 does not specifically define the term disciplinary action it is appropriate to seek further guidance. The American Heritage Dictionary, Second College Edition, Houghton Mifflin Company, 1985, in relevant part defines discipline as, to punish or penalize. Action, also in relevant part, is defined as, an act or thing done. Thus, a reasonable interpretation of disciplinary action is an act that either punishes or penalizes.

The letter to the Superintendent refers to the Goals and states that if all of the Goals are not met, he is subject to negative consequences. Mr. Knutson stated that the letter constituted final disciplinary action. The Commissioner respectfully disagrees.

It appears the purpose of this document is to serve as a threat of punishment or penalty to the employee; not to set forth discipline. There is no mention of punishment; instead the document describes what could happen if the Superintendent does not meet all of the Goals. Therefore, because it appears no disciplinary action was taken, the letter does not constitute final disciplinary action, and is private personnel data, under section 13.43, subdivision 4.

Here, the District asserts that it did not take disciplinary action against the employee, and the Commissioner has no information that contradicts that position. Accordingly, there has been no final disposition of a disciplinary action, and therefore only limited data regarding the complaint are public, i.e., whether a complaint or charge exists, and the status of any such complaint or charge.

However, the Commissioner does not believe that the District properly responded to Mr. Villareal regarding the status of the complaint against the employee. All the District told Mr. Villareal was that it had taken appropriate action in response to the complaint against the employee. That statement does not respond to a request for the status of a specific complaint about a specific employee. The District ought to have informed Mr. Villareal of the status of the complaint, i.e., that no disciplinary action was taken.

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Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Villareal is as follows:

Pursuant to Minnesota Statutes, Chapter 13, Independent School District 271, Bloomington, properly withheld access to data related to a complaint made against a District employee, but it should have informed the requestor that no disciplinary action was taken.

Signed:

Brian J. Lamb
Commissioner

Dated: November 10, 2003

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