Advisory Opinion 03-020

Facts and Procedural History:

On May 29, 2003, IPAD received a letter from Mark Anfinson, an attorney representing a newspaper, the Lake County Echo. In his request, Mr. Anfinson asked the Commissioner to issue an opinion regarding the classification of certain data the City of Pequot Lakes maintains.

IPAD, on behalf of the Commissioner, wrote to Marty Peisch, Clerk of the City of Pequot Lakes, in response to Mr. Anfinson's request. The purposes of this letter, dated June 3, 2003, were to inform her of Mr. Anfinson's request and to ask her to provide information or support for the City's position. On June 30, 2003, IPAD received a response, dated June 26, 2003, from Tom Fitzpatrick, an attorney representing the City.

A summary of the facts is as follows. In his letter, Mr. Anfinson wrote:

At issue is access to certain information requested by Echo editor Peter Frank after the Pequot Lakes city council closed a meeting on May 1. The council announced that in closing the meeting, it was relying on the exception found in Minn. Stat. section13D.05, subd. 2(b), which requires a public body to close a meeting for preliminary consideration of allegations or charges against an individual subject to its authority. Mr. Frank subsequently sought the identity of the individual who was the subject of the closed meeting, as well as the status of the matter. The city refused to provide this information.

Issue:

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

Where a public body closes a meeting in reliance on Minnesota Statutes, section 13D.05, subdivision 2(b), for consideration of allegations or charges, do the provisions of section 13.43, subdivision 2(a)(4), require the government entity to identify the individual who is being discussed and the status of the allegations or charges against the individual?

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Discussion:

Pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b), a governing body subject to the Open Meeting Law must close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. However, a meeting must be open if the individual so requests.

Pursuant to Minnesota Statutes, section 13.43, subdivision 2(a)(1), an employee's name is public. Pursuant to section 13.43, subdivision 2(a)(4), the following data about an employee are public: the existence and status of complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action. If and when the government entity takes disciplinary action and there is a final disposition, more data become public. (See section 13.43, subdivision 2(a)(5), and subdivision 2(b).)

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

...Closing a meeting for preliminary consideration of allegations which may be utterly unfounded provides protection to the reputation of the wrongly accused. Likewise, delaying release of information until final disposition of disciplinary action is intended to prevent harm caused by premature release of information in cases where an employer's decision to discipline is unjustified and is ultimately overturned upon independent review.

Mr. Fitzpatrick noted that the City is a small rural community with a population of 1,826.

He further stated:

Had the name been disclosed and subsequently published in this small town weekly, irreparable damage may have been done to the reputation of the individual, even though no discipline whatsoever may ultimately have been imposed and upheld if challenged....

The Commissioner addressed a similar issue in Advisory Opinion 94-042:

The City's Council held a closed meeting after announcing the meeting was closed for the purpose of considering charges against a City employee. At the end of the closed portion of its meeting, the City then held an open portion of its meeting. At the open portion of the meeting the City Council voted to discipline an employee. After that action, a reporter for the Hibbing Daily Tribune asked for the name of the employee who was disciplined and the nature of the discipline. The City denied this request...

In this instance, the City, acting through its Council, decided to discipline an employee. At the time that decision was announced, the City did not provide to the public, even when asked to do so, either the employee's name or what disciplinary action was being proposed....As there is not yet a final disposition of this disciplinary action, Section 13.43, subdivision 2 specifies that the following data about this employee and the City's handling of the complaints or charges against this employee are public: the employee's name; the status of the City's handling of the complaints or charges against the employee...

The language of Section 13.43 is very clear that, with the exception of undercover law enforcement officers, the names of public employees are always public. It seems equally clear that the name of an employee can also be associated with other public data about that employee. In this instance, that means that the City should provide to the newspaper the name of the employee and the fact that there have been complaints or charges against that named employee. Section 13.43 also directs that the status of complaints or charges about a named employee...also be treated as public...

Although the facts of 94-042 are slightly different than those presently before the Commissioner, the outcome is the same. Pursuant to section 13.43, subdivision 2(a)(1) and subdivision 2(a)(4), the name of an employee is public together with the existence and status of any complaints or charges that have been made against that employee. Chapter 13D does not contain a provision requiring public bodies to reveal the name of an employee who is the subject of a meeting that is closed pursuant to section 13D, subdivision 2(b). However, that fact does not vitiate a government entity's obligation to provide public data upon request.

In response to Mr. Fitzpatrick's comments, the Commissioner notes the Legislature, in considering the possibility that an employee's reputation would be damaged, enacted language providing that the details of a complaint or charge against an employee become public only if the employee is disciplined and a final disposition has occurred. (See section 13.43, subdivision 2(a)(5) and 2(b).)

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Opinion:

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

Where a public body closes a meeting in reliance on Minnesota Statutes, section 13D.05, subdivision 2(b), for consideration of allegations or charges, the provisions of section 13.43, subdivision 2(a)(4), require the government entity to identify the individual who is being discussed and the status of the processing of the complaints or charges against the individual.

Signed:

Brian J. Lamb
Commissioner

Dated: July 10, 2003

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