Official Publication of the Minnesota State Bar Association

Vol. 60, No. 4 | April 2003
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Public Sector Workplace Investigations:
Who Gets What Data When?

Minnesota's Government Data Practices Act is a seminal authority, but not the only one, for determining whether results of a public sector workplace investigation are public, private, or confidential and what that means for those seeking access to data.

by Therese M. Pautz and Linda Mealey-Lohmann

When a public employer or its agent1 conducts a workplace investigation in response to a complaint or charge against one of its employees, "government data" are generated. Public employers receive requests for this data from a variety of interested parties. Who the requestor is and whether the data are classified as "public," "private," or "confidential" under the Minnesota Government Data Practices Act, Minn. Stat. §13.01 et seq. (the "act"), are critical factors to consider in determining how to respond to such requests.

Whether and to what extent the data are accessible depends on how the data are classified. The difficulty in classifying data, however, is at least threefold: (1) more than one section of the act may bear on the classification of a given document or piece of data; (2) once data are classified, the classification can change; and (3) the act classifies data based on general presumptions, but carves out exceptions, and exceptions to exceptions.

This article will focus primarily on two sections of the act most relevant to classifying data generated by workplace investigations: (1) Section 13.43, titled "personnel data," and (2) Section 13.39, titled "civil investigative data." Each of these sections contains general presumptions about accessibility, along with exceptions. Obviously, this article cannot address all legal issues and all relevant provisions involved in making determinations about data disclosure. The act itself is highly complex and technical, containing numerous provisions relevant to particular service areas or functional areas, and is not the sole authority in these matters. The commissioner of the Department of Administration has authority to issue opinions on questions relating to the classification of and access to government data, and some data practices laws are codified outside the act. Because of the complexity of this area of the law, it may be advisable to consult an attorney with government data practice experience to determine the legal implications of any response to a request for data disclosure.

Classification of Government Data

How data are classified -- as "public," "private," or "confidential" -- bears significantly on determining access to the data and the obligations of public employers. Data that are classified as "public" can be disclosed to anyone upon proper request. Data that are classified as "private" can only be disclosed to the subject of the data. Data that are classified as "confidential" cannot be disclosed to the public or to the subject of the data.2 Of course, both private data and confidential data are accessible to staff within the public entity whose duties reasonably require access.3 Confidential and private data may also be accessible by court order.4

How does a public employer determine whether data generated by a workplace complaint and/or investigation should be classified as public, private, or confidential? Several sections of the act govern this classification process. The act operates on the general presumption that all government data are public and are accessible to anyone for inspection and copying upon proper request, unless classified otherwise.5 This general presumption is not helpful, however, because the act contains two major exceptions: (1) "Personnel data" are presumptively private, and (2) "Civil investigative data" are presumptively confidential. Other exceptions may also be relevant depending on the functional or service area of the public employer, but these exceptions are beyond the scope of this article.

Personnel Data Presumptively Private

Whenever a public employer collects data on an individual because the individual is or was an employee or an applicant for employment, or is a volunteer or independent contractor for a public entity, that data is considered "personnel data" under Section 13.43 of the act.

Notwithstanding the general presumption that government data is public, personnel data is presumptively private.6 That means that public employers cannot disclose the data to anyone except to the person who is the subject of the data.7 Of course, public employers may (and, in fact, must) disseminate private data to others when the person who is the subject of the data has given her informed consent and authorized the disclosure.8

In determining what data a public employer must disclose in response to a request from an employee who is the subject of a workplace complaint, several issues arise. First, while it is true that the requestor may have access to many of the documents generated because he is the subject of the data,9 this access right is limited. Many of the documents -- such as the complaint itself, statements by employees, the investigator's notes, and the investigation report -- may be inaccessible because they also contain private data about other protected employees that cannot be disclosed to the requestor. Such documents are referred to as having "multiple-data subjects." When confronted with documents concerning "multiple-data subjects," the public employer must not release the documents in their entirety. Rather, it must separate or redact the data and provide the requestor only with data about herself and not other protected employees.10 If that is impossible, it may be necessary to withhold the entire document.11

While the act is silent in assigning classifications to specific documents, it does specifically address statements by complainants. Subdivision 2(d) of Section 13.34 expressly states that a complainant always has access to his own statements provided in connection with a complaint against an employee. This language, combined with the general presumption that personnel data are private, suggests that statements by complainants are classified as private and that they are not accessible to the employee who is the subject of the workplace complaint.

A second issue that arises is that when a public employer receives a request for data generated in connection with a workplace complaint, it must take into account the documents created by or in the possession of its private investigator. A public employer cannot refuse a request to disclose documents solely on the ground that the data were generated by an outside investigator (hired by the public employer) or that the data are in the possession of the investigator and not the employer.12

A third issue that arises is that when allegations of harassment are made against the requestor, the requestor does not have access to the names of complainants or witnesses (or data that would identify them).13 These names are considered to be "harassment data" under Subdivision 8 of Section 13.43. Although employee names in general are presumptively public data, this section denies access to the names of harassment complainants and witnesses when it is determined that there is (1) a threat of personal safety to those complainants or witnesses or (2) a threat of further harassment.14 However, even when such a determination has been made and the identities are therefore withheld, the employee may still be entitled to that information if a disciplinary proceeding is initiated against the employee and the names are "necessary" to prepare for the proceeding.15

Personnel Data As Public Data

Notwithstanding the general presumption that personnel data are private, the act identifies several exceptions that classify certain personnel data as public data.16 For example, Section 13.43 identifies as public specific types of personnel data, such as name, salary, title, dates of employment, etc. Three other examples of public personnel data (in the context of workplace investigations) are: (1) the existence and status of any complaints or charges against an employee; (2) the final disposition of disciplinary action with reasons and supporting documents; and (3) the investigation of a public official. A public employer must be very careful about what information it discloses when it receives a complaint or charge against an employee. As discussed below, what may be disclosed, and to whom, depends on when the employer receives the request for data and whether the complaint involves a public official.

During an Investigation. Subdivision 2(a)(4) of Section 13.43 specifically states that until there is a "final disposition of disciplinary action," the only information that is classified as public is the "existence and status" of the complaint or charge.17 This means that a public employer may disclose only very limited information -- that complaints or charges exist, the number of complaints or charges, and their status.18 All other data related to the complaint or investigation are private and may not be disclosed to anyone except to the subject of the investigation (and even then only as permitted under the act), and to those individuals for whom it is "necessary for the administration and management of programs."19

During an investigation, the public employer cannot release information or documents regarding any quality or characteristic of the complaint, any details about its investigation, or other action it is taking. The recent decision of the Minnesota Supreme Court in Navarre v. South Wash. Cty. Schools, 2002 wl 31260628 (Minn. 2002), clarifies what data can and cannot be disclosed prior to the final disposition of disciplinary action. This case involved complaints from students, parents, and other teachers regarding a teacher's poor classroom management and teaching methods and the school's subsequent investigation. The Supreme Court clarified that, prior to the final disposition of disciplinary action, the school was limited to disclosing only the number of complaints made, the identity of the complainants in a general manner, and the status of the complaints. Thus, the school did not violate the act when it disclosed that it had received "numerous complaints from parents," and that the complaints were "investigated at the time" and that "the investigation continues." The school, however, violated the act when it disclosed data about the type of complaint by describing the quality or characteristics of the complaint. For example, the Court found that the superintendent improperly disclosed that the allegations were "serious," "sometimes alarming," and "substantiated enough" to justify the employee's suspension, and that the number of complaints was "unusual." The Court also found that the school improperly disclosed the superintendent's own conclusions about the validity of the complaints, as well as information that the teacher was not teaching and that the teacher was suspended.

The Navarre Court also addressed the issue of disclosing to the public one's mental impressions about a complaint and the ensuing investigation. The Court noted that the disclosure of one's mental impressions to the public does not violate the act if those impressions are based on data that are not recorded in any physical form; data must be "recorded in some physical form" to be considered government data. The Court, however, held that the disclosure of mental impressions derived directly from personnel data recorded in some physical form or from complaints or charges against an employee do violate the act because they are private personnel data.20

As is discussed below, the classification assigned to data and/or documents generated by an investigation may change from private to public once there has been a "final disposition of disciplinary action." However, such data will remain private if no disciplinary action is taken.

Following Disposition -- No Disciplinary Action. When a public employer concludes an investigation, but takes no disciplinary action against the employee, only the limited data regarding the existence of the complaint and its status are public. All other data remain private and no further data regarding the incident may be disclosed, including the employer's reasons for not taking disciplinary action.21

Following Disposition Involving Disciplinary Action. Subdivision 2(a)(5) of Section 13.43 specifies that certain personnel data become public "after the final disposition of a disciplinary action." This section expressly states that the following data become public: (1) the disciplinary action, (2) the specific reasons for the action, and (3) data documenting the basis of the disciplinary action, excluding data that would identify confidential sources who are employees of the public employer.22 Thus, the key to determining what data change from private to public and when the status of those data changes lies in determining whether a "disciplinary action" has occurred and when the "final disposition" of the disciplinary action has occurred.

What constitutes a "disciplinary action" may not always be clear. It may hinge on the terms of an employer's personnel policies and procedures relating to discipline or the terms of the employee's contract. For example, a letter sent to an employee may constitute "disciplinary action" if it specifies performance problems with the employee, details corrective actions that must be taken, and characterizes the corrective directives as disciplinary action.23 Placing an employee on paid medical leave may not constitute disciplinary action.24

Determining whether a "final disposition" has occurred is fairly straightforward. Minn. Stat. §13.43, subd. 2(b) specifies that a final disposition occurs when the public employer makes its final decision about the disciplinary action, regardless of the possibility of any later administrative or court proceedings. In other words, the supporting data become public even if the employee has the right to file a lawsuit or appeal a disciplinary action under another statute.25 The only exception is in the case of arbitration proceedings arising under collective bargaining agreements. For collective bargaining employees, the act specifies that a "final disposition" occurs only when the arbitration proceeding is concluded or when the employee fails to elect arbitration within the required time period. The act also states that a "final disposition" includes a resignation by an individual when the resignation occurs after the final decision of the public employer or arbitrator.26

When a public employer receives a request for personnel data after a final disposition of disciplinary action has occurred, it must carefully examine all relevant data to determine what becomes public and what remains private. The entire investigative file and disciplinary response do not necessarily become public. The employer must first determine what data and documents reflect the "final disposition of disciplinary action," the "specific reasons for the action," and the "data documenting the basis of the action." Second, the employer must determine whether the requested document contains private data about other protected employees. As discussed above, data in complaints, investigation notes, investigation reports, and arbitrators' reports and awards may contain private personnel data that remain private and not accessible to the public or the disciplined employee.27

Disclosures Regarding Public Officials. Special rules apply when a public employer is asked to disclose data generated in connection with a complaint involving a public official. All data relating to any complaints against a public official become "public" in two circumstances: (1) upon completion of the investigation or (2) when the public official resigns or is terminated before the investigation is completed, unless access to the data would jeopardize an active investigation or reveal confidential sources.28 This rule applies even if the employer takes no disciplinary action.

A 1997 Commissioner's Opinion clarifies what constitutes a "complaint" or an "investigation" against a public official triggering the reclassification of otherwise private data. The data at issue involved faculty complaints against a college president and subsequent work by an outside investigator that resulted in 85 interviews and a written report. The commissioner rejected the college's position that Subdivision 2(e) of Section 13.43 did not apply because there was no "complaint," but rather merely faculty "concerns" about the president. The commissioner ruled that a complaint does not have to be "formal," but rather can be merely a protest, an allegation, or hostile criticism against a public official. The commissioner also rejected the college's position that there was merely an "evaluation" or "review" of faculty concerns, and not an "investigation." The commissioner ruled that an investigation existed because an investigation is a "study by close examination" or "a systematic and official inquiry." Having found that both a complaint and an investigation existed, the commissioner further ruled that upon the completion of the investigation, all data contained in the investigator's report relating to the faculty's complaints against the school president were public, except any data that revealed confidential sources or would jeopardize an active investigation.29

Civil Investigative Data

Even after a public employer determines that certain data and/or documents generated in connection with a workplace investigation are public, or are reclassified as public after the imposition of discipline, it still may not disclose those documents if they are considered "civil investigative data" -- the second major exception to the general presumption that all government data are public. Civil investigative data are data collected as part of an "active investigation" for the purpose of commencing or defending a pending civil legal action or retained in anticipation of a pending civil legal action.30

Active Civil Investigation Data. There is a general presumption that active civil investigative data are confidential and may not be disclosed to anyone absent court order. Data are considered civil investigative data (and presumptively confidential) only when two conditions are met: (1) the chief attorney for the public employer has determined that a civil legal action is pending, and (2) the data are "collected" in connection with the pending action.31

Because active civil investigative data are confidential, they are not accessible even to the subject of the data, except by court order.32 For example, in Washington v. Indep. Sch. Dist. No. 625, 610 N.W.2d 347 (Minn. App. 2000), the school district investigated a student's allegations of inappropriate sexual overtures by an assistant high school principal. As part of the investigation, an investigator interviewed the assistant principal, made notes, transcribed tape-recorded interviews of various people, and provided a report to the board of education. There, the court noted that this "investigative information" was not accessible to the assistant principal without a court order because it was data collected by the school in anticipation of or to defend a pending civil action.33

Despite the confidential classification, Section 13.39 specifies that a complainant always has access to her own statements provided to the public employer in connection with an investigation.34

Exceptions During Active Civil Investigation. Section 13.39 contains several exceptions to the general presumption that such data are confidential. This section provides that a public employer may make confidential data accessible to the public in three limited situations. Public access is permitted if it is determined that access will (1) aid law enforcement, (2) promote public health or safety, or (3) dispel widespread rumor or unrest.35 Public entities are cautioned against invoking these exceptions, particularly the "widespread rumor" exception, to justify the release of otherwise private or confidential data. The widespread rumor must be one that "threatens the community repose," and not simply be an ordinary rumor that is part of everyday life.36

Inactive Civil Investigation. The classification of civil investigative data changes from confidential to public when the action becomes inactive.37 Section 13.39, however, contains two exceptions to this rule: (1) data that would, if released, jeopardize another pending civil legal action, and (2) those portions of the file that are classified as not public by other sections of the act, such as Section 13.43, which classifies personnel data as private. When a civil investigation becomes inactive, the public employer must engage in the analysis discussed above, e.g., what can be disclosed depends on whether disciplinary action was taken against the employee and whether it involves a public official. When no disciplinary action is taken against the employee following a complaint and investigation, any data generated in connection with the matter remain private after the civil action becomes inactive.38 On the other hand, when disciplinary action has been taken, public employers must also determine the extent to which the file contains private data about multiple-data subjects -- data that must remain private as to those other protected individuals.

Concluding Observations

Public employers are faced with the daunting task of determining what data to disclose to whom and when in the context of a workplace investigation. Because the classification of data determines its accessibility, employers must first properly classify the requested data. Then the employer must determine whether it can properly disclose the data to this specific requestor. As discussed above, these determinations are based on a careful analysis of who the requestor is, the timing of the request, who the subject of the complaint is, and the specific content of the documents requested. M

1 For purposes of this article, "public employer" includes all government entities subject to the Minnesota Government Data Practices Act, which include any political subdivision, state agency, and statewide system. Minn. Stat. § 1302, subd. 7, 7a, 11, 17, 18; Minn. R. 1205.0100.

2 Minn. Stat. §13.02, subd. 15 ("public" data); Minn. Stat. §13.02, subd. 12 ("private" data); Minn. Stat. §13.02, subd. 3 ("confidential" data).

3 Minn. R. 1205.0400, 1205.0600.

4 Minn. Stat. §13.43, subd. 4. Note that an administrative subpoena may be the equivalent of a court order. See e.g. E.E.O.C. v. Henn. Cty., 623 F.Supp. 29 (D. Minn. 1985). But see State v. Colonna, 371 N.W.2d 629 (Minn. App. 1985).

5 Minn. Stat. §13.01, subd. 3.

6 Minn. Stat. §13.43, subds. 2 and 4.

7 Minn. Stat. §13.02, subd. 12. Public employers must keep in mind that this access right applies to current or former employees, applicants, volunteers, or independent contractors. Minn. Stat. § 13.43, subd. 1; see Pathmanathan v. St. Cloud State Univ., 461 N.W.2d 726 (Minn. App. 1990).

8 Minn. Stat. §13.04, subd. 2.

9 Wiegel v. City of St. Paul, 639 N.W.2d 378 (Minn. 2002).

10 See Op. Comm'r Dep't Admin. 01-028; Op. Comm'r Dep't Admin. 99-014.

11 See Northwest Publ., Inc. v. City of Bloomington, 499 N.W.2d 509 (Minn. App. 1993); see also Op. Comm'r Dep't Admin. 01-041; Op. Comm'r Dep't Admin. 94-034.

12 Pathmanathan v. St. Cloud State Univ., 461 N.W.2d 726 (Minn. App. 1990); Op. Comm'r Dep't Admin. 98-001.

13 Minn. Stat. §13.43, subd. 8. This section does not protect the identity of complainants who are not employees. Op. Comm'r Dep't Admin. 97-018; see also Op. Comm'r Dep't Admin. 94-018.

14 Minn. Stat. §13.43, subd. 8. This section applies only to access to data by persons who are employed by a government entity, not former applicants. Op. Comm'r Dep't Admin. 00-074;.

15 Minn. Stat. §13.43, subd. 8; Op. Comm'r Dep't Admin. 94-018.

16Minn. Stat. §13.43, subd. 2.

17 Minn. Stat. §13.43, subd. 2(a)(4).

18 Minn. Stat. §13.43, subd. 2(a)(4); Navarre v. South Wash. Cty. Schools, 2002 wl 31260628 (Minn. 2002); Op. Comm'r Dep't Admin. 01-037; Op. Comm'r Dep't Admin. 94-042.

19 Minn. Stat. §13.05, subd. 3; see also Unke v. Independent School Dist. No. 147, 510 N.W.2d 271 (Minn. App. 1994); Burns v. City of Minneapolis, 2001 wl 1589619 (D. Minn. 2001).

20 Navarre v. South Wash. Cty. Schools, supra n. 17, citing Deli v. Hasselmo, 542 N.W.2d 649, 653-54 (Minn. App.), rev. denied (Minn. 1996); Keezer v. Spickard, 493 N.W.2d 614, 617-18 (Minn. App.), rev. denied (Minn. 1993).

21 Minn. Stat. §13.43, subds. 2(a)(4), 2(b). See State v. Renneke, 563 N.W.2d 335 (Minn. App. 1997); Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991). See also Op. Comm'r Dep't Admin. 99-030; Op. Comm'r Dep't Admin. 99-014.

22 Minn. Stat. §13.43, subd. 2(a)(5). See Unke v. Independent School Dist. No. 147, 510 N.W.2d 271 (Minn. App. 1994).

23 Op. Comm'r Dep't Admin. 01-065.

24 Op. Comm'r Dep't Admin. 98-023.

25 Op. Comm'r Dep't Admin. 00-035.

26 Minn. Stat. § 13.43, subd. 2(b).

27 See Op. Comm'r Dep't Admin. 98-043; Op. Comm'r Dep't Admin. 97-018; Op. Comm'r Dep't Admin. 97-010.

28 Minn. Stat. §13.43, subd. 2(e). See Burns v. City of Minneapolis, 2001 wl 1589619 (D. Minn. 2001).

29 Op. Comm'r Dep't Admin. 97-003.

30 Minn. Stat. §13.39, subd. 1, 2.

31 Minn. Stat. §13.39, subd. 1 See Clearwater v. Independent School District No. 166, 2001 wl 1155706 (Minn. App. 2001); St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993); Op. Comm'r Dep't Admin. 00-065; Op. Comm'r Dep't Admin 95-050.

32 Minn. Stat. §13.02, subd. 13.

33 But see State v. Hopperstad, 367 N.W.2d 546 (Minn. App. 1985).

34 Minn. Stat. §13.39, subd. 2(b).

35 Minn. Stat. §13.39, subd. 2(a).

36 Navarre v. South Wash. Cty. Schools, 2002 wl 31260628 (Minn. 2002); Deli v. Hasselmo, 542 N.W.2d 649 (Minn. App. 1996).

37 Minn. Stat. §13.39, subd. 3.

38 See Op. Comm'r Dep't Admin. 94-006.

THERESE M. PAUTZis an attorney and is the founder and president of NeuVest, a company that provides neutral workplace investigations and training.

LINDA MEALEY-LOHMANN is an attorney practicing as an independent contractor in the area of employment law.