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HomeMy WebLinkAbout2012-05-02 PACKET 00 (6:30 WORKSHOP)* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * COUNCIL ACTION REQUEST Workshop: Data Practices Training by City Attorney Corrine Heine SUPPORTING DOCUMENTS ❑ MEMO /LETTER: ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ❑ OTHER: ADMINISTRATORS COMMENTS City A / 01ninistrator D'ate�� * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER Document2 COMPLYING WITH THE MINNESOTA GOVERNMENT DATA PRACTICES ACT AND THE MINNESOTA OPEN MEETING LAW An Overview for City Council Members Prepared by: Corrine A. Heine, Kennedy & Graven, Chartered L THE MINNESOTA GOVERNMENT DATA PRACTICES ACT ( "the MGDPA "). A. Introduction The MGDPA applies to all "govemment data," that is, data in a physical form (written document, computer diskette, microfiche, handwritten note, etc.) and collected, created, received, maintained or disseminated by the City. The MGDPA establishes a classification system for government data, and the classification of the data determines who may obtain access to the data B. Classification scheme The classification of data determines who can have access to the data. The MGDPA establishes three levels of access: Classification Who may have access Public data Any person, regardless of why the person wants the data Private data * Subject of the data and persons in Nonpublic data ** government whose jobs require ac- cess Confidential data * Persons in govemment whose jobs Protected nonpublic data ** require access, but not data subject * Term applies to data on individuals. ** Term applies to data not on individuals, e.g., corporations, etc. The four classifications of private data, nonpublic data, confidential data, and protected nonpublic data are collectively referred to as "not public' data C. Public Presumption Because the State of Minnesota favors open government, there is a presumption that all government data is public. Government data is not public only if there is a state statute or federal law that classifies the data as private, nonpublic, confidential, or protected nonpublic. In the absence of such a statute, the data is public. D. Requirements of MGDPA The three fundamental requirements of the MGDPA are: (1) that the City allow a person to see and make copies of data when the law gives the person the right to such access; (2) that the City not allow unauthorized persons to have access to data that is not public; and (3) that the City appoint a 155176v12 CAH TH405 -17 Complying with the MGDPA and Open Meeting Law April 2012 Responsible Authority to ensure that the requirements of the MGDPA are satisfied. There are other requirements that do not directly impact on city council members but that are the responsibility of the Responsible Authority. Those requirements include time deadlines and procedures for providing access to data, adoption of policies and procedures, and creation of a data inventory. E. Penalties for Violation of the MGDPA There are significant penalties for violation of the MGDPA. 1. Action for damages A person who suffers damage as the result of a violation of the MGDPA can sue the City for damages, plus costs and reasonable attorney's fees. If the violation was willful, the person may also be entitled to punitive damages of $1,000 to $15,000 for each violation. 2. Action to compel compliance Any aggrieved person can bring an action to require the City to comply with the MGDPA. The person may recover costs and reasonable attorney's fees. If the action is frivolous, however, the court may award costs and reasonable attorney's fees to the City. If the court issues an order to compel compliance, it may impose a civil penalty of up to $1,000. In determining whether to impose such a penalty, the court must consider the City's history of compliance with various MGDPA provisions. 3. Criminal charges A person who willfully violates the MGDPA is guilty of a misdemeanor. 4. Discipline A public employee who willfully violates the MGDPA may be suspended without pay or discharged. F. Selected Examples of Public and Not Public Data The following types of data are those that city council members often encounter and that raise data privacy concerns: 1. Personnel data Personnel data is governed by Minn. Stat. § 13.43. Most information that the City collects or maintains about its employees, volunteers, and applicants for employment is private data on individuals. This includes, among other things, performance evaluations and disciplinary matters that are not final. The following information, however, is public: a. As to former and current employees, volunteers, and independent contractors: name; employee identification number (but not if a social security number); actual gross salary; salary range; contract fees; actual gross 155176v12 CAH TH405 -17 2 Complying with the MGDPA and Open Meeting Law April 2012 pension; value and nature of employer -paid fringe benefits; basis for and amount of any added remuneration, including expense reimbursement; job title and bargaining unit; job description; education and training background; previous work experience; date of first and last employment; existence and status of complaints or charges against the employee, regardless of whether the charges result in discipline (but not the nature of the charge); final disposition of disciplinary action; specific reasons for disciplinary action and the data documenting the basis for the discipline (excluding data that identifies confidential employee sources); terms of any agreement settling an employment dispute including certain buyouts; work location; work telephone number; badge number; honors and awards received; payroll time sheets or other comparable data (but not portions which show reasons for use of sick or medical leave). b. As to current and former applicants for employment: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. (Names are private until the applicant is selected as a "finalist' for the position, i.e., is selected to be interviewed bythe hiring authority.) C. All other personnel data is private data but may be released pursuant to a court order. 2. Data on elected and appointed officials. Data on elected officials depends upon whether the elected officials are considered "employees" for purposes of data practices. If the City considers its elected officials to be employees for data practices purposes (does not require that elected officials be employees for ELSA or other purposes), the provisions of § 13.43, discussed above, apply. If a city does not treat elected officials as employees for data practices purposes, then all data on elected officials is public, unless another statute applies. E.g., § 13.355 applies to social security numbers. 3. Data on appointed officials. Minn. Stat. § 13.601 governs data on applicants for appointment to a public body (e.g., planning commission.). It also applies to persons appointed to a city council rather than elected. 4. Civil investigative data Data collected in connection with a pending civil legal action is classified as confidential, which means that access is restricted to those government staff persons whose jobs require access. 155176x12 CAH TH405 -17 3 Complying with the MGDPA and Open Meeting Law April 2012 4. Labor relations information Management positions on economic and noneconomic items that have not been presented during collective bargaining or interest arbitration, including information specifically collected or created to prepare management's position in the negotiations, are classified as confidential in order to protect labor negotiation strategies. 5. Correspondence with constituents Correspondence between elected officials and constituents is private data on individuals but can be made public by either the elected official or the constituent. Minn. Stat. § 13.601. 6. Property complaint data The identities (names, addresses and other identifying information) of persons who register complaints with the City concerning violations of state laws or local ordinances concerning the use of real property are classified as confidential data Minn. Stat. § 13.44. 7. Attorney - client privileged information Data protected by the attorney- client privilege is excluded from the provisions of the Data Practices Act. The City is not required to disclose privileged information but may do so by waiving the privilege. The privilege belongs to the City as a corporation, not to individual council members. An individual council member does not have authority to waive the corporation's privilege. IL MINNESOTA OPEN MEETING LAW. A. General rule All meetings of a city council, board or commission, or of a subcommittee of the city council, a city board or commission, must be open to the public. B. Meetings As a general rule, a meeting consists of a quorum or more of the members of the council, board or commission, at which the members receive or discuss information relative to matter that is or may come before the council. It does not include chance, social gatherings (provided that public business is not discussed). It does not include serial telephone calls or letters, provided that the council is not purposely using calls or letters as a means of deciding public matters outside the public view. (hi other words, it is OK to lobby and consult one another, but decisions on public business must be made publicly.) C. Open to public Meetings must be "open to the public." That is, the meeting must be held in a location where the public can attend. 1. hi general Generally, this requirement would prevent the council from holding meetings outside city limits (except in cases where it is not possible 155176x12 CAH TH405 -17 4 Complying with the MGDPA and Open Meeting Law April 2012 to hold the meeting within city limits). The meeting location must not be inaccessible to the public because of limited size or locked doors. 2. Interactive television Meetings may be held by interactive television, with council members at different locations, provided: all members must be able to see and hear one another and see all discussion and testimony; members of the public at the regular meeting location must be able to see all discussion and all votes of the council; at least one member of the council must be physically present at the regular meeting location; and each location at which any member of the council is present must be open and accessible to the public. 3. Telephone or electronic means /emergency. Meetings may be held by telephone or electronic means if the presiding officer, chief legal counsel or chief administrative officer determines that it is not practical or prudent to have an in- person meeting due to a health pandemic or a declared emergency. At least one member must participate at the regular meeting location unless that is not possible due to the circumstances. All members who participate must be able to hear one another and all discussions and testimony. Members of the public must be able to hear discussion. Votes must be by roll call. Remote monitoring must be allowed if practical, and the government entity can charge a fee to cover its additional cost for the remote access. D. Notice Meetings must be properly noticed in order to be considered open to the public. 1. Regular meetings A schedule of regular meetings kept at city hall meets the notice requirement. 2. Special meetings Any meeting that is held at a different time or place than the time and place stated in the schedule of regular meetings is a special meeting. Notice of the time, date, place and purpose of a special meeting must be: (a) posted on the city bulletin board; and (b) either mailed or delivered to persons requesting notice of special meetings or, in the alternative published at least once in the official newspaper. The posting, mailing, delivery, or publication must occur at least three days prior to the special meeting. 4. Emergency meetings An emergency meeting is one called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body. Notice of the time, place, date and subject of the meeting must be given to news media as soon as reasonably 155176v12 CAH TH405 -17 5 Complying with the MGDPA and Open Meeting Law April 2012 practicable. The notice can be given by telephone or any other means used to notify the members of the public body that is meeting. 5. Closed meetings The notice requirements apply to closed meetings in the same way as they apply to open meetings. 6. Interactive television meetings The meeting notice for meetings conducted by interactive television must provide notice of every site where a member of the council will be physically located during the meeting. Actual notice Any person who receives actual notice of a meeting at least 24 hours prior to the meeting cannot allege that the notice requirements were not met. E. Copies of agenda materials At least one copy of agenda materials must be available in the meeting room for inspection by the public. "Agenda materials" includes all printed materials relating to the agenda items that are prepared or distributed by the public body or at its direction and that are distributed to all members of the body at or before the meeting. (Note: this can include more than the formal printed agenda materials.) The requirement does not apply to materials that are classified as not public under the Minnesota Government Data Practices Act. F. Tape Recording. Closed meetings, except those closed for attorney- client privilege, must be tape recorded. The tapes must be retained for three years, except as otherwise provided in the law. Other retention periods apply to tapes of meetings for purposes of labor negotiation, security briefings, and real property negotiation. G. Exceptions to open meeting requirement 1. Closed meeting optional hi the situations listed below, a meeting may be closed but is not required to be closed. The required procedure is for the council to decide, by majority vote at a public meeting, to close the meeting. The council must also state on the record the specific ground permitting the meeting to be closed and must describe the subject to be discussed. a. Meetings to consider strategy for labor negotiations, including developments or discussion and review of labor negotiation proposals. These meetings must be tape- recorded, and the tape becomes public once the contract is finalized. b. Meetings to evaluate the performance of an individual who is subject to its authority. (Le., individuals whom the council has the power to hire or fire.) The individual to be evaluated must be identified 155176v12 CAH TH405 -17 Complying with the MGDPA and Open Meeting Law April 2012 before the meeting is closed. At the next open meeting, the council must summarize its conclusions regarding the evaluation. The evaluation meeting must be open if the individual being evaluated so requests. C. Meetings with the city attorney to discuss pending or threatened litigation. The city attorney must be present and must determine whether it is appropriate to close the meeting. d. Meetings to receive security briefings and reports, to discuss issues related to security systems, to discuss emergency response procedures and to discuss security deficiencies in or recommendations regarding public services, infrastructure and facilities, if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses. Financial issues related to security matters must be discussed and all related financial decisions must be made at an open meeting. Before closing a meeting under this exception, the council must refer to the facilities, systems, procedures, services, or infrastructures to be considered during the closed meeting. A closed meeting must be tape recorded and the recording must be preserved for at least four years. e. Meetings to determine the asking price for real or personal property to be sold by the city; to review confidential or nonpublic appraisal data; and to develop or consider offers or counteroffers for the purchase or sale of real or personal property. Before closing a meeting under this exception, the council must identify the subject property. The closed meeting must be tape recorded, the subject property must be identified on the tape, and the recording must be preserved for eight years and made available to the public after the subject property has been purchased or sold or the council has abandoned the purchase or sale. A list of council members and other persons present at the closed meeting must be made available to the public after the closed meeting. An agreement based on an offer considered at a closed meeting is contingent on approval by the council at an open meeting. The actual purchase or sale price must be approved at an open meeting and is public data f Meetings that are expressly allowed by statute to be closed. 2. Closed meeting required In the following circumstances, the council must close the meeting (but see subparagraph d.). Again, the council must decide, 155176v12 CAH TH405 -17 7 Complying with the MGDPA and Open Meeting Law April 2012 by majority vote at apublic meeting to close the meeting and must state on the record the specific ground permitting the meeting to be closed and describe the subject to be discussed. a. Any portion of a meeting at which data is discussed that would identify alleged victims or persons who have reported criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults. b. Any portion of a meeting at which data is discussed that is active criminal investigative data or internal affairs data relating to allegations of law enforcement personnel misconduct C. Any portion of a meeting at which educational data, health data, medical data, welfare data, or mental health data is discussed. (City councils do not typically handle these types of data) d. One or more meetings for preliminary consideration of allegations or charges against an individual subject to the council's authority. Once a determination has been made that discipline of any nature may be warranted as a result of those specific allegations or charges, further meetings or hearings about those specific allegations or charges must be open to the public. The meeting must also be open if requested by the individual who is the subject of the meeting. H. Penalties 1. Civil penalty A person who intentionally violates the Open Meeting Law is subject to a penalty of $300 for each occurrence. The public body may not pay the penalty for the individual. 2. Forfeiture of office A person who is found to have intentionally violated the Open Meeting Law in three or more court actions involving the same public body must forfeit the right to serve on that public body or in any other capacity with the public body for a period of time equal to the term of office the person is then serving (i.e., the period of forfeiture for a council person is four years.) 3. Atttomev's fees The court may award attorney's fees, costs and disbursements, up to $13,000, to a party who claims that the Open Meeting Law was violated. The public body may pay the award on behalf of its members, if authorized by majority vote of the public body. The court may require a person who brought the action to pay the costs and attorney's fees 155176v12 CAH TH405 -17 8 Complying with the MGDPA and Open Meeting Law April 2012 of the council member or City, up to $13,000, if the court finds that the action was frivolous and without merit. The court must award reasonable attorney's fees to a plaintiff who obtained a Department of Administration advisory opinion on the matter, if the government entity did not act in conformity with the opinion. 4. Specific intent required Monetary penalties or attorney fees may not be awarded against a member of a public body unless the court finds that there was specific intent to violate the Open Meeting Law. III. HOW THE MGDPA AND OPEN MEETING LAW WORK TOGETHER. A. Printed materials The requirement that copies of written materials be made available to the public at open meetings does not apply to materials that contain data classified as not public. The city staff should identify for the council any agenda materials that are not public, so that the council does not unintentionally violate the MGDPA. The risk of unintentional violation of the MGDPA can be further reduced if council members return to city staff all materials classified as "not public' after the council members have reviewed the materials. B. Discussing not public data at public meetings Except in the situations enumerated in Section 11 above, the city council may not close a meeting on the ground that not public data will be discussed. Data that is not public can be discussed at an open meeting (other than the a meeting that is required to be closed), and it will not result in a violation of the MGDPA if. (1) the data being discussed relates to a matter within the scope of the authority of the public body; and (2) discussion of the data is reasonably necessary to conduct the business or agenda item before the meeting. C. Working together Whenever possible, council members should consult with the city clerk or city attorney prior to a public meeting if the council members have questions about the classification of data and whether it is appropriate to discuss the data at a public meeting. 155176v12 CAH TH405 -17 9