Advisory Opinion 05-037

Facts and Procedural History:

On October 3, 2005, IPAD received a letter dated September 29, 2005, from Cynthia Valentine, Acting Director of Human Resources for the Minnesota Department of Labor and Industry. In her letter, Ms. Valentine asked the Commissioner to issue an advisory opinion regarding the classification of certain data the Department maintains.

On October 4, 2005, IPAD received a letter from an attorney representing X. In the letter, X's attorney asked the Commissioner to issue an opinion regarding X's access to certain data the Department maintains. (The data X seeks are the same data about which the Department asked the Commissioner to issue an opinion.)

IPAD, on behalf of the Commissioner, accepted the Department's opinion request and invited X's attorney to submit comments in addition to those the attorney sent on October 4, 2005. IPAD received additional comments on October 20, 2005. IPAD also invited the individual who made a complaint about X to submit comments. IPAD received comments from the complainant on October 19, 2005.

A summary of the facts as provided by the Department is as follows. Ms. Valentine wrote:

Earlier this year, a complainant contacted the [Department] to [make a complaint about a Department employee].

The [Department] initiated an investigation into this report. no disciplinary action was taken. In response to [X's] request for a copy of the investigation report, the [Department] gave [X] a summary report which did not disclose the identity of the complainant. [X] now has requested the [Department] to [sic] identify the name of the complainant

Ms. Valentine wrote that the complainant alleged X was using his/her State position to intimidate and threaten the complainant and others to obtain a favorable outcome in a personal matter. Ms. Valentine wrote, If true, these allegations would constitute a conflict of interest in violation of Minn. Stat. section 43A.38 [code of ethics for employees in the executive branch].

Ms. Valentine provided copies of various pieces of correspondence between the Department and X's attorney. In a letter dated August 3, 2005, the Department wrote to X's attorney denying access to the complainant's identity based on Minnesota Statutes, section 181.932, subdivision 2.

Issue:

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

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the Minnesota Department of Labor and Industry maintains: the identity of an individual who complained about a Department employee?

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Discussion:

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

Here, the Department has denied X access to the complainant's identity based on Minnesota Statutes, section 181.932. Of relevance, section 181.932, subdivision 1, clause (a) provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

(a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;

Subdivision 2, in relevant part, states:

The identity of any employee making a report to a governmental body or law enforcement official under subdivision 1, clause (a) or (d), is private data on individuals as defined in section 13.02.

Subdivision 3 states, This section does not permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth.

In her opinion request, Ms. Valentine stated, Here, the complainant made a report of the violation of the state conflict of interest statute to the [Department], which is a governmental body. The complainant's identity therefore is private data and the [Department] is precluded from disclosing the complainant's identity to the requestor.

Ms. Valentine also refuted several arguments X's attorney made in an August 12, 2005, letter:

[X's attorney] argues that since pursuant to subdivision 3 [of section 181.932], an individual is not permitted knowingly to make false statements, and since, [X's attorney] alleges, the complainant's report was false, the complainant therefore should not enjoy the protections of confidentiality. While this argument may be an effective defense against a Whistleblower lawsuit, it does not destroy the classification of this data in the hands of the [Department] as private under [Chapter 13]. The [Department] has no evidence that complainant's report was knowingly false or in reckless disregard of the truth [sic] the [Department's] obligation is to maintain its private classification under [Chapter 13].

[X's attorney] also argues that the classification of the identity of the complainant as private data violates the Minnesota Constitution, Article 1, section 8, which entitles every person to a remedy in the laws for all injuries and wrongs. [X] claims that because [X] is prevented from confronting [his/her] accuser, [X] is deprived of a remedy for the complainant's alleged defamation. Minn. Stat. section 181.932, subd. 2 does not violate this constitutional provision. [Chapter 13] sets forth a procedure to be followed for discovery of not public data in Minn. Stat. section 13.03, subd. 6. [X] may discover the information [X] seeks through court order if [X] meets the requirements of Minn. Stat. section 13.03, subd. 6.

[X's attorney] argues additionally that Minn. Stat. section 181.932, subd. 2 does not apply since the Whistleblower statute prohibits actions of employers, and [X] is not an employer. According to the plain language of the statute, the Whistleblower Act does not limit its definition of report to reports of violations of law committed by employers. The Act protects the identity of individuals who report violations of law to a governmental body, without regard to whether the violator is an employer or another individual. The complainant in this case made a report of the violation of law to a governmental body. As such, as the recipient of that report, the [Department] must treat the complainant's identity as private data.

The Commissioner agrees with Ms. Valentine's analysis. The complainant complained to the Department alleging X was using his/her State position to intimidate and threaten the complainant and others to obtain a favorable outcome in a personal matter - a violation of a state law. Pursuant to section 181.932, the identity of an individual making such a complaint is private and not accessible to X. If X wants access, s/he should bring an action under section 13.03, subdivision 6, or section 13.08.

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Opinion:

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

Pursuant to Minnesota Statutes, section 181.932, the following data that the Minnesota Department of Labor and Industry maintains are private: the identity of an individual who complained about a Department employee.

Signed:

Dana B. Badgerow
Commissioner

Dated: November 18, 2005

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