When the Minnesota Commissioner of Labor and Industry issues an order under § 176.181 finding that an employer failed to carry workers compensation insurance, are that order and the employer's written objection public data, or are they investigative data that has to be kept confidential?

Plain-English summary

On September 24, 1998, the Minnesota Commissioner of Labor and Industry (DOLI) issued an Order to Comply and Penalty Assessment to certain individuals and companies, finding that they had not maintained workers compensation insurance as required by Minn. Stat. § 176.181, subd. 2. The Order directed them to obtain insurance and assessed penalties. The named respondents filed written objections under § 176.181, subd. 3(b), which triggered an expedited hearing before a compensation judge.

A public-records requester later asked DOLI for the Orders and the Objections. DOLI released them. One of the individuals named in the documents complained to the Commissioner of Administration, who issued an advisory opinion on February 15, 2000 concluding that releasing the documents violated the individual's data practices rights. The Commissioner of Administration treated the Orders and Objections as civil investigative data under Minn. Stat. § 13.39, which would have made them protected nonpublic or confidential.

DOLI asked AG Mike Hatch whether the documents were really investigative data, or whether they were public data.

The AG sided with DOLI. The documents were public. The Commissioner of Administration was wrong.

The AG's reasoning had four parts.

First, under Minn. Stat. § 13.03, subd. 1, government data is public unless classified otherwise by state statute, federal law, or temporary classification. No such classification covered the DOLI Orders and Objections.

Second, the Commissioner of Administration had treated the documents as "civil investigative data" under § 13.39. That statute classifies as protected nonpublic or confidential "data collected by state agencies ... as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action." But the AG read this category narrowly. The Orders to Comply and Penalty Assessments were not investigative work product. They were the official documents initiating a civil legal action, analogous to criminal citations, arrest warrants, or civil summonses, all of which are public in the hands of the originating agency (§ 13.82, subd. 2(j)). The Objections were not "collected" by DOLI in any investigative sense; the data subjects themselves created them.

The AG cited Everest Development Ltd. v. City of Roseville, 566 N.W.2d 341 (Minn. App. 1997), which held that settlement documents distributed among parties could not be treated as protected nonpublic data because they were not created "for the commencement or defense of a civil action" and could not be inaccessible to the subject (the subject already had them). The AG also cited St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), where the Supreme Court held that a tort claim notice submitted under § 466.05 was not nonpublic investigative data because it was not "collected" by the city in the course of an investigation.

Third, definitional fit. Section 13.02, subd. 3 defines "confidential data" on individuals as data not public "and inaccessible to the individual subject of that data" (emphasis added). Subdivision 13 makes the same point for "protected nonpublic data" not on individuals. But DOLI Orders must by law be served on the subjects, and Objections are filed by the subjects themselves, so the subjects always have access. Treating them as confidential or protected nonpublic would produce the "absurd outcome" Everest Development warned against (citing State v. Murphy and Minn. Stat. § 645.17(1)).

Fourth, structural support from other parts of MGDPA. The Act consistently treats data about formally charged persons as public well before the underlying legal proceedings finish: § 13.43, subd. 2(4) makes the existence and status of complaints or charges against public employees public; § 13.82, subd. 2 makes the names of cited, arrested, or incarcerated persons public; § 471.705, subd. 1d(c) opens meetings on disciplinary matters once an initial finding of possible discipline is made. By analogy, an administrative agency's formal order against a regulated entity should also be public.

The Commissioner's release of the DOLI Orders and Objections to the public did not violate the data subjects' rights.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The MGDPA has been amended substantially since 2000, particularly around investigative data classifications (§ 13.39) and worker compensation data (§ 176.231 et seq.). The principle that formal administrative orders are public (as distinguished from underlying investigative work product) appears still to hold but should be confirmed against the current statute and case law.

Historical context: what the AG concluded

The opinion has a clear structure: introduction, four numbered arguments, conclusion.

Argument 1. Section 13.03, subd. 1 establishes the public-data default. The AG found no statute, federal law, or temporary classification that reached the DOLI Orders and Objections.

Argument 2. Section 13.39 (civil investigative data) does not apply because:
- The Orders are not investigative work product; they are the official documents that initiate a civil legal action.
- The Orders are analogous to criminal citations, arrest warrants, and civil summonses, all of which are public in the hands of the originating agency.
- The Objections were not "collected" by DOLI in any investigative sense; they were created by the data subjects.

The AG cited Everest Development for the proposition that settlement documents distributed among parties cannot be protected nonpublic data, and St. Peter Herald for the proposition that documents submitted by the data subject to the agency are not "collected" in the sense § 13.39 contemplates.

Argument 3. Section 13.02 definitions: "confidential" and "protected nonpublic" both require that the data be "inaccessible to the individual subject of that data." DOLI Orders are served on the subject by statute, and Objections are filed by the subject. The subjects already have access. The Everest Development court called the contrary reading "absurd."

Argument 4. Structural support from other MGDPA provisions that make formal charges and orders public. § 13.43, subd. 2(4); § 13.82, subd. 2; § 471.705, subd. 1d(c). The legislature has consistently chosen openness for formal administrative actions against named individuals.

The AG added a policy observation. The principal purpose of § 13.39 is to protect investigative work product from premature disclosure that could prejudice the investigation or the person being investigated. The issuance of an Order means the Commissioner is no longer just investigating; she has made a determination and is taking action. Withholding the fact of that determination would serve no public purpose, particularly when the violation involves failure to carry workers compensation insurance, a matter of clear public-safety concern.

The AG also noted that even if the matter were still under investigation, § 13.39, subd. 2(a) gives the agency discretion to release otherwise-protected data when doing so would "aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest." Workers compensation insurance enforcement comfortably fits all three.

Common questions

Q: I'm a journalist who wants DOLI to release names of employers cited for failing to carry workers compensation insurance. Can DOLI do that?
A: Under the 2000 opinion, yes. The Orders DOLI issues under Minn. Stat. § 176.181, subd. 3(a) are public data once issued. The Objections filed in response are also public. Section 13.39 (civil investigative data) does not protect them. Pull the current statute and check for any subsequent amendments before relying on this answer for a specific 2026 request.

Q: I'm an employer who got a DOLI Order. Can I keep the press from getting copies?
A: Under the 2000 opinion, no, unless you have a separate statutory basis (such as a temporary classification or a federal law). The Order is public from the moment DOLI serves it on you. Your written objection is also public when you file it. If the matter goes to hearing before a compensation judge, additional data classifications may apply to evidence and testimony at the hearing, but the threshold documents are public.

Q: Does this opinion mean all DOLI data is public?
A: No. The 2000 opinion specifically addresses Orders issued under § 176.181, subd. 3 and Objections filed under subd. 3(b). Other DOLI data may be classified differently. Investigative work product, internal staff analyses, complaint information, and similar materials may still fall under § 13.39 or other classifying statutes. Each data type must be analyzed separately.

Q: How does this opinion relate to the Commissioner of Administration's advisory opinion?
A: The Commissioner of Administration's February 15, 2000 advisory opinion (No. 00-014, approximately) concluded that the Orders and Objections were civil investigative data and that DOLI improperly released them. The AG disagreed and superseded the Commissioner of Administration's opinion under Minn. Stat. § 13.072, subd. 1(f). After the August 2000 AG opinion, the AG's view was the operative state-agency position.

Q: What about Orders the Commissioner issues but later withdraws or modifies?
A: The 2000 opinion does not directly address that scenario. The general principle is that the document is public when issued and served. Withdrawal or modification by the Commissioner doesn't make the original document non-public retroactively; the document was public when issued. But the current status of the matter is what's most useful to a public-records requester. Consult counsel on how DOLI should disclose changes.

Q: Are similar orders from other Minnesota administrative agencies (Department of Health, Department of Commerce, etc.) also public?
A: The 2000 opinion's reasoning would extend by analogy. Formal orders that initiate a civil enforcement action, supported by an objection-and-hearing process, look like the DOLI Orders the opinion addressed. But the specific statutes governing each agency must be checked. Some agencies have express data-classification provisions in their enabling statutes that override the § 13.03 public-data default.

Background and statutory framework

Minnesota's workers compensation insurance mandate is in Minn. Stat. § 176.181, subd. 2. Subdivision 3 gives the Commissioner of Labor and Industry enforcement authority: the Commissioner may issue an Order to Comply and Penalty Assessment to an employer the Commissioner has reason to believe is not in compliance. The employer has ten working days to file a written objection. If no objection is filed, the Order becomes final and is enforceable in district court by civil contempt proceedings. If an objection is filed, the matter goes to the Office of Administrative Hearings for an expedited hearing before a compensation judge, who issues a decision within ten days of the hearing.

The Minnesota Government Data Practices Act, Minn. Stat. ch. 13, sets the framework for classifying government data. Section 13.03, subd. 1 is the public-data default. Section 13.39 covers civil investigative data, classifying it as protected nonpublic (data not on individuals) or confidential (data on individuals) during the period of active investigation.

The Everest Development and St. Peter Herald cases gave Minnesota courts' interpretation of when § 13.39 applies. Both cases said the same thing: documents distributed to parties or submitted by the data subject are not "collected" by the agency in the § 13.39 sense.

Mike Hatch was AG in 2000. Kenneth E. Raschke, Jr. was the Assistant AG of record. Note that the original opinion contains some typos ("Minn. Stat. § 276.18" should be "§ 176.18"; "Minn. Stat. § 3.02" should be "§ 13.02"); the opinion text below preserves these as they appeared, since this is a verbatim reproduction.

Citations and references

Statutes:
- Minn. Stat. § 13.02, subd. 3 (definition of confidential data on individuals)
- Minn. Stat. § 13.02, subd. 13 (definition of protected nonpublic data)
- Minn. Stat. § 13.03, subd. 1 (public data default)
- Minn. Stat. § 13.39 (civil investigative data)
- Minn. Stat. § 13.43, subd. 2(4) (complaints or charges against public employees are public)
- Minn. Stat. § 13.82, subd. 2 (criminal citation/arrest data are public)
- Minn. Stat. § 176.181 (workers compensation insurance mandate and enforcement)
- Minn. Stat. § 176.181, subd. 3 (DOLI Order to Comply and Penalty Assessment process)
- Minn. Stat. § 471.705, subd. 1d(c) (open meetings on disciplinary matters after initial finding)
- Minn. Stat. § 645.17(1) (legislature does not intend an absurd result)

Cases:
- Everest Development Ltd. v. City of Roseville, 566 N.W.2d 341 (Minn. App. 1997)
- St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993)
- State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996)

Commissioner of Administration advisory opinion:
- Advisory Opinion of February 15, 2000 (treating DOLI Orders and Objections as civil investigative data; superseded by this AG opinion)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/852-20000804.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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 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.

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, 566 N.W.2d 341 (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. See State v. Murphy, 545 N.W.2d 909, 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.

Id. at 344-45.

In St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (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 should be included within a category of data which, by definition, is not normally available to data subjects.

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. 1d (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

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