FYI - September 2017

FYi Newsletter – From the Data Practices Office at the Department of Administration

SEPTEMBER 2017     

Advisory Opinion Update

Quorum Discussion Prior To Meeting

In Advisory Opinion 17-006, a member of the public asked whether a town board violated the Open Meeting Law when a quorum of members met and discussed documents prior to calling a meeting to order. The Commissioner opined that the issue involved a factual dispute that could not be resolved. The opinion requester also asked whether the Board violated the OML because a public copy of all members’ materials was not available to the public at the meeting. The Commissioner opined that the Board did not comply with the OML, because it did not provide a public copy of all members’ materials.

Appointment of RAs and DPCOs

In Advisory Opinion 17-007, a member of the public asked about determinations a county made regarding the appointment of county responsible authorities [“RAs”] and data practices compliance officials [“DPCOs”]. The Commissioner opined that the county did not comply with the data practices act, because it appointed more RAs and DPCOs than are allowed. Each elected official is the RA for that office, as is the director of the county welfare agency. The only other RA and/or DPCO the County may have is an employee appointed by the County Board.

Recent Cases

Kristina Greene, et al. v. Minnesota Bureau of Mediation Services, et al., No. A16-1863 (Minn. App., Jul. 24, 3017).

As part of a union decertification process, Respondents made a data request to Appellants for the names, phone numbers, and addresses of employees that were part of their collective bargaining unit (CBU). Those requests were denied on the basis that providers were not eligible, under Minn. Stat. § 179A.54, subd. 9, to access the current list of CBU employees compiled under Minn. Stat. § 256B.0711, subd. 4(f). The Court affirmed the decision of the lower court to order injunctive relief in favor of the Respondents, on the basis that the Respondents would be irreparably harmed without access, and because names, addresses, and phone numbers of employees are public personnel information. The court reasoned that even if the underlying data (which contained some home addresses and personal phone numbers that would normally be private personnel data under § 13.43, subd. 4) are not classified as public personnel data, the list compiled pursuant to Minn. Stat. § 256B.0711, subd. 4(f), is available upon request to an employee organization pursuant to Minn. Stat. § 179A.54, subd. 9, and it could then be made available to the public. Thus, the court concluded that making the data in the list available under section 13.43, subdivision 4, is consistent with legislative intent, even if Minn. Stat. § 13.43, subd. 2(a)(1), (7), does not technically apply.

Scheffler v. McDonough, No. 15-CV-3707 (PJS/KMM) (D.Minn. Aug. 23, 2017).

Plaintiff sued the city of Coon Rapids on the basis of “MGDPA Retaliation”, alleging that the city sought a no-contact order to retaliate against him for making data requests under Chapter 13. The Court dismissed the claim, because nothing in Chapter 13 provides for such a cause of action. The Court also noted that even if such a cause of action existed, Plaintiff provided insufficient evidence that a nexus between his data requests and the City’s decision to seek a no-contact order existed.

McCabe v. Department of Human Services et al., No. A17-0002 (Minn. Ct. App., Sept. 5, 2017).

Appellant, a caregiver, was interviewed as part of an investigation by Hennepin County Human Services (HCHS) into suspected neglect. HCHS failed to give appellant a Tennessen Warning, as required by Minn. Stat. § 13.04, subd. 2, prior to conducting the interview. Appellant argued that HCHS was therefore prohibited by law from using the information provided during the interview. The Court of Appeals disagreed, arguing that while § 13.05, subd. 2 prohibits the “use[] or disseminat[ion] by government entities for any purposes other than those stated to the individual at the time of collection”, the proper civil remedy for an alleged violation is found under § 13.08.

In re the Appeal of the Determination of the Responsible Authority for the South Washington County Schools (ISD #833) that Certain Data about Loren Lorenz are Accurate and/or Complete, No. 65-0205-32378 (Minn. Ct. App., Aug. 7, 2017).

Lorenz, a former employee of South Washington Count Schools (ISD #833), appealed  the Commissioner of Administration's dismissal of his challenge to the accuracy and completeness of data maintained by ISD #833, specifically language within his letter of termination. Lorenz argued that the Commissioner's determination was not supported by substantial evidence in the record, was arbitrary, capricious, and biased, and that language within the termination letter (e.g. that Lorenz was "insubordinate", had acted in a manner "unbecoming an employee", and that he had made "threatening" remarks) should be removed. The Court of Appeals upheld all of the Commissioner's determinations but one; that Lorenz had made "threatening" remarks. The Court held that Lorenz actions (standing, pointing his finger, and threatening to sue) were not intended to threaten anyone's physical safety, and were therefore not accurately described as "threatening."  Lorenz has sought certiorari review at the Minnesota Supreme Court.

Upcoming DPO Workshops

The Ins and Outs of Government Records – September 22nd (Noon – 1 P.M.); October 9th (5:30 P.M. – 6:30 PM) - Minneapolis Central Library

DPO is hosting two free presentations for members of the public. These presentations will cover the Minnesota Data Practices Act and how to obtain government records. DPO staff will discuss how members of the public can request public records and records about themselves from state and local government. All are welcome to attend! No registration or RSVP necessary.

Intro to Data Practices Policies and Procedures Workshop – October 13th  (8:45 a.m. - Noon)

This half-day workshop provides an overview of the Minnesota Government Data Practices Act and related policies and procedures required for government entities.

For more information on DPO's workshops, please check our website.