DATA PRACTICES ACT: LABOR AND INDUSTRY: ORDERS: Orders of Commissioner of
Labor and Industry and objections thereto are public data. Minn. Stat. §§ 13.39, 176.181.

                                                                                            852
                                                                     (Cr. Ref. 523a-17, 523a-27)


                                         August 4, 2000


Gretchen Maglich, Commissioner
Minnesota Department of
  Labor and Industry
443 Lafayette Road North
St. Paul, MN 55155

Dear Commissioner Maglich:

       In materials submitted to Attorney General Mike Hatch, you set forth substantially the
following:

                                            FACTS

        On September 24, 1998, the Commissioner of Labor and Industry, in accordance with
Minn. Stat. § 176.181 subd. 3 (a), issued to certain persons and their companies ("the
Respondents") an Order and an amended Order to Comply and Penalty Assessment ("the
Orders"). The Orders notified the Respondents that the Commissioner had determined that they
had violated Minn. Stat. § 176.181 subd. 2 by not maintaining workers compensation insurance,
ordered them to obtain workers compensation insurance, and assessed penalties. On October 6,
1998, the commissioner received objections from the subjects of the Orders, submitted pursuant
to Minn. Stat.§ 176.181 subd. 3 (b) ("the Objections").

        Subsequently, the Department of Labor and Industry released, in response to a data
practices request, the Orders, and the Objections. Based upon those facts, one of the individuals
named in the Orders and Objections requested an opinion of the Commissioner of
Administration as to whether the Department of Labor and Industry violated the rights of the
individual by releasing the Orders and Objections to a member of the public.

        In an opinion dated February 15, 2000, the Commissioner of Administration determined
that release of those documents violated the data practices rights of the individual named.

       You then ask substantially the following:

                                         QUESTION

              Did the Minnesota Department of Labor and Industry (DOLI) improperly
       disseminate to the public data about the Respondents contained in the following
 Gretchen Maglich, Commissioner
 Page2


        documents: 1) an Amended Order to Comply and Penalty assessment dated
        September 24, 1998; 2) an Order to Comply and Penalty Assessment dated
        September 25, 1998; and 3) an Objection to the Amended Order to Comply and
        Penalty Assessment filed with DOLI (received on October 6, 1998) by the data
        subject's attorney?

                                            OPINION

        It is our opinion that Orders of the Commissioner issued pursuant to Minn. Stat. § 176.18,
 subd. 3, and objections to the Orders submitted pursuant to paragraph (b) of that subdivision, are
 public data under the Minnesota Government Data Practices Data Practices Act. Their release
 does not violate the rights of the Respondents named in those documents.

       The Department's enforcement provisions for mandatory workers compensation
insurance requirements are contained in Minn. Stat. § 276.18, subd. 3 which provides, in part, as
follows:

                Subd. 3. Failure to insure, penalty. (a) The commissioner, having reason
        to believe that an employer is in violation of subdivision 2, may issue an order
        directing the employer to comply with subdivision 2, to refrain from employing
        any person at any time without complying with subdivision 2, and to pay a
        penalty of up to $1,000 per employee per week during which the employer was
        not in compliance.

               (b) An employer shall have ten working days to contest such an order by
       filing a written objection with the commissioner, stating in detail its reasons for
       objecting. If the commissioner does not receive an objection within ten working
       days, the commissioner's order shall constitute a final order not subject to further
       review, and violation of that order shall be enforceable by way of civil contempt
       proceedings in district court. If the commissioner does receive a timely objection,
       the commissioner shall refer the matter to the office of administrative hearings for
       an expedited hearing before a compensation judge. The compensation judge shall
       issue a decision either affirming, reversing, or modifying the commissioner's
       order within ten days of the close of the hearing. If the compensation judge
       affirms the commissioner's order, the compensation judge may order the
       employer to pay an additional penalty if the employer continued to employ
       persons without complying with subdivision 2 while the proceedings were
       pending.

        The Commissioner's order described in subdivision 3(a) and the employer's objection
described in subdivision 3(b) were the documents released by the Department. Together they
provide the jurisdictional basis for a contested case proceeding. Both the plain wording of the
statutes and rules of statutory construction lead to the conclusion that the Order and Objections
are public under the Minnesota Government Data Practices Act ("MGDPA"), Minn. Stat. ch. 13.
 Gretchen Maglich, Commissioner
 Page 3


         Under Minn. Stat. § 13.03, subd. 1, all government data are considered public unless
 specifically classified otherwise by state statute, federal law or temporary classification. We are
 aware of no statute, federal law, or temporary classification that would classify such orders and
 objections as other than public.

         However, the Commissioner of Administration concluded otherwise in his February 15,
2000 opinion. He opined that the Orders and Objections must, as a matter of law, be classified
as civil investigative data pursuant to Minn. Stat. § 13.39. We disagree. That statute provides, in
part, as follows:

                Subdivision 1. Definitions. A "pending civil legal action" includes but is
        not limited to judicial, administrative or arbitration proceedings. Whether a civil
        legal action is pending shall be determined by the chief attorney acting for the
        state agency, political subdivision or statewide system.
               Subdivision 2. Civil actions. (a) Except as provided in paragraph (b), data
       collected by state agencies, political subdivisions, or statewide systems as part of
       an active investigation undertaken for the purpose of the commencement or
       defense of a pending civil legal action, or which are retained in anticipation of a
       pending civil legal action, are classified as protected nonpublic data pursuant to
       section 13.02, subdivision 13, in the case of data not on individuals and
       confidential pursuant to section 13.02, subdivision 3, in the case of data on
       individuals. Any agency, political subdivision, or statewide system may make
       any data classified as confidential or protected nonpublic pursuant to this
       subdivision accessible to any person, agency or the public if the agency, political
       subdivision, or statewide system determines that the access will aid the law
       enforcement process, promote public health or safety or dispel widespread rumor
       or unrest.

        While these provisions authorize government agencies to withhold, from both the public
and the data subject, information developed in the course of an investigation, it does not follow
that all documents produced or held by an agency during the time period of an active
investigation must be considered confidential or protected nonpublic investigative data. For
example, in Everest Development Ltd. v. City of Roseville, 

(Minn. App. 1997),
the court held that settlement documents distributed among the parties could not be considered
protected civil investigative data. The court reasoned that they were not created "for the
commencement or defense of a civil action" and that, by their very nature, such documents could
not be inaccessible to the subject matter of the data. The court explained:

       [W]e reject the city's reasoning that the documents were protected nonpublic data
       because the civil legal action was still "pending" until final settlement. The city
       seeks to label as protected nonpublic data documents that have already been
       distributed to the city, CPIC, and Ryan during the settlement negotiations. Such
       analysis would lead to an absurd outcome because, under Minn. Stat. § 13.02,
       subd. 13, protected nonpublic data is not accessible to the subjects of the data.
 Gretchen Maglich, Commissioner
 Page 4


         See State v. Murphy, 

, 916 (Minn. 1996) (applying Minn. Stat.
         § 645.17 (1996)) (when construing statutes, court must presume legislature did
         not intend absurd results.) The legislature could not have intended to make
         settlement documents protected nonpublic data because the documents, by their
         very nature, must be made available to the parties to the settlement.

 

- 45.

         In St. Peter Herald v. City of St. Peter, 

(Minn. 1993), the supreme court
 determined that a city could not treat a notice of tort claim submitted to the city pursuant to
 Minn. Stat. § 466.05 as nonpublic investigative data despite the fact that it contained information
 pertinent to an anticipated legal action because the data was not "collected" by the city in the
 course of an investigation.

        In our view, the reasoning of both Everest and St. Peter Herald applies to the documents
referred to in your request.

      First, the "data" contained in the Orders or objections was not "collected" or "retained"
by the agency "as part of an active investigation undertaken for the purpose of the
commencement or defense" of a proceeding.

        While they were undoubtedly based upon information gathered during an investigation,
the order and the amended order are not part of the investigation process. The Orders were part
of the civil legal action itself, in which the Commissioner had ordered that certain persons and
companies which violated Minnesota law had to comply with the law and be assessed penalties
for their violations. The Orders were the official documents initiating the process that could lead
to an administrative proceeding. In that respect the Orders are analogous to criminal citations,
arrest warrants, or a civil summons, which are at all times public in the hands of the originating
agency. See Minn. Stat. § 13.82 subd. 2(j). Likewise the objections filed by the subjects of the
Orders, (which are the official documents that determine the need for an administrative hearing),
were not "collected" by the commissioner in an investigative sense. Cf St. Peter Herald.

        Second, the Orders and Objections are not considered "confidential" or "protected
nonpublic" as defined by Minnesota Statutes § 3.02, subd. 3. This statute defines "confidential
data" on individuals as "data which is made not public by statute or federal law applicable to the
data and is inaccessible to the individual subject of that data." (Emphasis added.) Subdivision
13 of that section defines protected "nonpublic data" as "data not on individuals which is made
by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject
of the data." (Emphasis added.) In contrast, any order and penalty assessment issued by the
Commissioner must be served upon the subject of the order. Similarly, an objection filed by the
Respondent to the order of the Commissioner is necessarily accessible to the subject of the data
because the subject created it. Thus, its existence and the information contained within it are
known to the subject. As the court observed in Everest Development, the Legislature did not
intend the absurdity of providing that documents which must always be available to data subjects
    Gretchen Maglich, Commissioner
    Page 5


    should be included within a category of data which, by definition, is not normally available to
    data subjects. 1

            Third, it should be noted that the principal purpose of Minn. Stat. § 13.39 is to enable the
    agency to protect its investigative work product from premature disclosure in situations which
    could prejudice the person being investigated as well as the continuing investigation or
    presentation of the agency's case. The issuance of an Order means that the Commissioner is not
    simply investigating. Rather, the Commissioner has made a determination and is taking action
    against a Respondent. It would serve no public purpose for the Commissioner to keep private
    the fact that she has made a determination that a company is not providing statutory mandated
    workers' compensation insurance. Even if the Commissioner was still only investigating the
    matter, the statute gives the Commissioner discretion to release "investigative" data in situations
    where, as here, it would advance the law enforcement process.

         Finally, this opinion is supported by reference to other provisions of the MGDPA, which
consistently provide for disclosure of the identity of persons formally charged with offenses long
before the legal processes are concluded. See, e.g., Minn. Stat. §§ 13.43, subd. 2 (4) (existence
and status of complaints or charges against public employees are public) and 13.82, subd. 2
(name, age, sex and address of persons cited, arrested or incarcerated are public). See also Minn.
Stat.§ 471.705, subd. ld (c) (meetings concerning disciplinary matters must be open following
initial determination that discipline may be warranted).

       Therefore, we conclude that Orders and objections are not civil investigative data within
the meaning of Minn. Stat. § 13.39, and are therefore to be considered public pursuant to Minn.
Stat.§ 13.03.

                                                     Very truly yours,


                                                     MIKE HATCH
                                                     Attorney General
                                                     State of Minnesota




                                                    KENNETH E. RASCHKE, JR
                                                    Assistant Attorney General
                                                    (651) 297-1141
AG: 393611,v. 01


1
  See Minn. Stat.§ 645.17 (1) (the legislature does not intend a result that is absurd, impossible
of execution or unreasonable).