Advisory Opinion 05-027

Facts and Procedural History:

On May 17, 2005, IPAD received a letter dated same, from Nancy Cameron, Assistant General Counsel for Independent School District 625, Saint Paul. In her letter, Ms. Cameron asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the District maintains. IPAD requested clarification, which the District provided on June 21, 2005.

A summary of the facts is as follows. In her opinion request, Ms. Cameron wrote:

[The District] negotiates with over 20 labor unions. Approximately half of the contracts are renegotiated every year, usually for two-year contract periods.

In the fall of 2004, the School District negotiators negotiated with AFSCME Council, 5, Local #844 over the terms of and conditions of the next contract, anticipated to be effective from July 1, 2004 through July 1, 2006. After several negotiation sessions, the District and AFSCME negotiators could not reach agreement AFSCME requested mediation and a mediator was appointed by the Bureau of Mediation Services.

After mediation commenced in November 2004, School District negotiators reached their settlement authority within the parameters set by the Board of Education. The negotiators accordingly needed them to return to the Board of Education to determine what direction the Board wanted them to take and what additional authority, if any, they had to settle the contract.

The Board of Education noticed and held a closed meeting on December 7, 2004, for the purpose of discussing labor negotiations. This meeting was tape recorded as required by Minn. Stat. section 13D.03, subd. 2(a) (2004) Negotiators received direction from the Board as to how the Board wanted negotiators to proceed.

Mediation resumed among the District and union representatives on January 14, 2005. At that meeting, District negotiators presented the District's Final Settlement Proposal to AFSCME Council 5, Local #844 Thereafter, the Board of Education noticed and held a closed Board meeting on January 18, 2005, for the purpose of discussing labor negotiations. That meeting was tape recorded as required by Minn. Stat. section 13D.03, subd. 2(a) (2004). The same topics were addressed at this meeting as at the December 7, 2005 meeting.

Union leadership presented the School District's offer to AFSCME members on January 31, 2005. Although leadership recommended a strike vote, AFSCME members voted to accept the School District's proposal. The AFSCME contract was signed by the School Board on March 22, 2005.

The School District's 2005 fiscal year runs from July 1, 2004 through June 30, 2005. Contracts for four unions-representing the pipefitters, plumbers, roofers and sheet metal workers-expired on May 1, 2005. The School Board has not signed new labor contracts with these unions.

On April 26, 2005 [an individual] requested copies of the tapes of the closed School Board meetings held in December 2004 and January 2005.

Issues:

Based on Ms. Cameron's request for an opinion, the Commissioner agreed to address the following issues:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: audiotapes of two closed Saint Paul Board of Education meetings containing labor relations information as defined in section 13.37, subdivision 1(c), that have not been presented during the collective bargaining process? Regardless of the classification of the data in the audiotapes, must the District make the tapes available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2, if all labor contracts have not been signed by the governing body for the current budget period? If the audiotapes, or parts of them, contain nonpublic or protected nonpublic data, pursuant to section 13.37, subdivision 1(c), and the Board has signed all labor contracts for the current budget period, does section 13D.03, subdivision 2, require that the District make the tapes available to the public? If the District must make the audiotapes, or parts of them, available to the public pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District withhold the tapes because the public and nonpublic or protected nonpublic data are so inextricably intertwined that redaction would be unreasonable? If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District charge for the cost of redacting nonpublic or protected nonpublic data? If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, must the District provide copies or is providing an opportunity to listen to the tapes sufficient?

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Discussion:

Issue 1:

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data: audiotapes of two closed Saint Paul Board of Education meetings containing labor relations information as defined in section 13.37, subdivision 1(c), that have not been presented during the collective bargaining process?

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

Pursuant to Minnesota Statutes, Chapter 13D, the Open Meeting Law, a governing body, such as the Saint Paul Board of Education, may hold a closed meeting to consider strategy for labor negotiations. (See Minnesota Statutes, section 13D.03.) Subdivision 2 of section 13D.03 requires the governing body to (1) tape-record the proceedings of a closed meeting and (2) preserve the recording for two years after the contract is signed and make the recording available to the public after the governing body signs all labor contracts for the current budget period.

Section 13.37, subdivision 2, classifies labor relations information as private (data on individuals) and nonpublic (data not on individuals), and states that labor relations information relating to a specific labor organization is protected nonpublic (data not on individuals). Section 13.37, subdivision 1(c), defines labor relations information as, management positions on economic and noneconomic items that have not been presented during the collective bargaining process or interest arbitration, including information specifically collected or created to prepare the management position.

In her opinion request, Ms. Cameron stated that the two audiotapes in question were recorded at closed meetings of the Board on December 7, 2004 and January 18, 2005. She further stated that the Board signed the AFSCME contract on March 22, 2005. In addition, Ms. Cameron wrote:

The School District's 2005 fiscal year runs from July 1, 2004 through June 30, 2005. Contracts for four unions-representing the pipefitters, plumbers, roofers and sheet metal workers-expired on May 1, 2005. The School Board has not signed new labor contracts with these unions.

Ms. Cameron also wrote:

Information contained in much of the discussion of the tapes is 'labor relations data' as defined by Minn. Stat. section 13.37, subd 1(c). It consists of 'management positions on economic and noneconomic items that have not been presented during the collective bargaining process' and 'information specifically collected or created to prepare the management position. At the meetings, the Board of Education was presented with written information and analyses, and discussed with the District's administrative staff and negotiators: negotiation history, theory, and strategy; developments and proposals in the AFSCME negotiations and mediation process.

Section 13D.03 provides that audiotapes must be preserved for two years after the contract is signed and must be made available to the public after all labor contracts are signed for the current budget period. Here, the AFSCME contract was signed on March 22, 2005, but the Board apparently has not signed all labor contracts for the current budget period. Thus, at this time, it appears the audiotapes are not available to the public.

Had the Board signed all labor contracts for the current budget period, the District would be required to make the audiotapes available to the public pursuant to section 13D.03. The issue Ms. Cameron raises is whether the District could then withhold any labor relations data , as defined in section 13.37, that exist in the audiotapes. Section 13.37 classifies labor relations data as not public. Because there appears to be a conflict between the two provisions, the Commissioner consulted Minnesota Statutes, Chapter 645, which provides guidance on statutory interpretation.

Minnesota Statutes, section 645.26, provides that when the provisions of two or more laws passed at different sessions of the Legislature are irreconcilable, the law latest in date of final enactment shall prevail. Here, in 1980 the Legislature passed the language in section 13.37 classifying certain labor relations data as not public and in 1981 passed the language in section 13D.03 making public audiotapes of meetings closed for labor negotiation strategies. (See Laws of Minnesota for 1980, Chapter 603, section 15, and Laws of Minnesota for 1981, Chapter 174, section 1.) Therefore, it appears section 13D.03 controls in situations where an audiotape of a closed meeting contains data relating to management positions on economic and noneconomic items that were not presented during the collective bargaining process or interest arbitration.

Issue 2:

Regardless of the classification of the data in the audiotapes, must the District make the tapes available to the public pursuant to Minnesota Statutes, section 13D.03, subdivision 2, if all labor contracts have not been signed by the governing body for the current budget period?

As stated in the analysis regarding Issue 1, if the Board has not signed all labor contracts for the current budget period, the District is not required to make the audiotapes available to the public.

Issue 3:

If the audiotapes, or parts of them, contain nonpublic or protected nonpublic data, pursuant to section 13.37, subdivision 1(c), and the Board has signed all labor contracts for the current budget period, does section 13D.03, subdivision 2, require that the District make the tapes available to the public?

As stated in the analysis regarding Issue 1, if the Board has signed all labor contracts for the current budget period, the District is required to make the audiotapes available to the public regardless of whether they contain labor relations information, as that term is defined in section 13.37, subdivision 1(c).

Issue 4:

If the District must make the audiotapes, or parts of them, available to the public pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District withhold the tapes because the public and nonpublic or protected nonpublic data are so inextricably intertwined that redaction would be unreasonable?

As stated in the analysis regarding Issue 1, if the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. Therefore, the issue of data being inextricably intertwined is moot.

Issue 5:

If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, and the tapes contain nonpublic or protected nonpublic data pursuant to section 13.37, subdivision 1(c), may the District charge for the cost of redacting nonpublic or protected nonpublic data?

As stated in the analysis regarding Issue 1, if the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. Therefore, the issue of charging for redaction of the tape is moot. However, the Commissioner notes that, pursuant to section 13.03, subdivision 3(c), government entities may not charge for separating public from not public data.

Issue 6:

If the District must make the audiotapes, or parts of them, available to the public, pursuant to section 13D.03, subdivision 2, must the District provide copies or is providing an opportunity to listen to the tapes sufficient?

Pursuant to section 13.02, subdivision 7, the audiotapes are government data. Pursuant to section 13.03, subdivision 3(a), individuals are permitted to inspect and obtain copies of government data. Thus, if the individual asking to gain access to the audiotapes wants a copy, rather than an opportunity to listen to the audiotapes, the District must provide a copy. The District may charge for the copy as provided in section 13.03, subdivision 3(c).

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Opinion:

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

Because the Saint Paul Board of Education apparently has not signed all labor contracts for the current budget period, the audiotapes of two Board meetings closed for labor negotiations are not available to the public, pursuant to Minnesota Statutes, section 13D.03. If the Board has not signed all labor contracts for the current budget period, the District is not required to make the audiotapes available to the public. If the Board had signed all labor contracts for the current budget period, the District would be required to make the audiotapes available to the public. If the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. The issue of charging for redaction is moot. If the timing is such that, pursuant to section 13D.03, the District must make the audiotapes available to the public, the data in the audiotapes cannot be withheld pursuant to section 13.37. The issue of data being inextricably intertwined is moot. Pursuant to section 13.03, subdivision 3(c), upon request, the District is required to provide copies of the audiotapes.

Signed:

Dana B. Badgerow
Commissioner

Dated: August 10, 2005

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