When a Minnesota city council fills a vacancy by appointment, and the city treats its council members as 'city employees,' is the personal information submitted by people applying for that appointment public or private?

Plain-English summary

In January 2006, Rochester City Attorney Terry Adkins asked the AG a question that had been quietly festering across Minnesota cities. Before 2005, in cities that treated council members as "city employees," data on people applying for appointment to fill a vacant council seat was classified as personnel data under Minn. Stat. § 13.43. That meant most of it (other than the limited public items listed in subdivision 4) was private. Local officials often wouldn't even disclose the names of applicants. The Commissioner of Administration had been issuing opinions consistent with that for years.

In 2005, the legislature added Minn. Stat. § 13.601, subd. 3, which made the following items public for all applicants for election or appointment to a public body: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience. The Commissioner of Administration then issued Advisory Opinion 05-036 (Nov. 2005) reading the new statute aggressively: § 13.601, subd. 3 just restated the general presumption that government data is public, and since no other statute classified the rest of the contact information for council applicants as private, everything on a council applicant was public. That interpretation effectively zeroed out the prior § 13.43 personnel-data treatment.

Adkins asked the AG whether the Commissioner's reading was right.

Assistant AG Kenneth E. Raschke, Jr. (for AG Mike Hatch) said no. The legislative history showed the 2005 amendment was a narrow compromise, not a blanket public reclassification. The original bill would have made all data on applicants public. Sponsors and committee testimony in February through April 2005 talked about wanting to clarify that names and addresses of applicants were public, because some cities were refusing to even disclose those. When the broader language reached the Senate Omnibus Bill, it would have made "all data" on applicants public. But that broader version was rejected in conference, and the enacted version was the narrower list of specific items. Reading the enacted statute the way the Commissioner did, as a blanket reclassification of everything as public, would render its enumerated list of public items "essentially meaningless" and ignore the legislature's deliberate choice to narrow the language.

So § 13.601, subd. 3 was a "limited exception" to private classifications, not a wholesale public reclassification. Data on applicants for appointment to council vacancies, in cities that consider council members to be employees, remained private personnel data under § 13.43, except for the items expressly made public by § 13.43, subd. 3 (veteran status, relevant test scores, rank on eligible list, job history, education and training, work availability) and the items made public by § 13.601, subd. 3 (name, city of residence, education and training, employment history, volunteer work, awards and honors, prior government service or experience).

Currency note

This opinion was issued in 2006. 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 many times since 2006, including additional items added to § 13.601 and continued refinement of § 13.43. The companion AG opinion from October 6, 2006 (also numbered 852) clarified that this opinion's reasoning does NOT extend to candidates running for election (as opposed to applicants for appointment). Any practical question today about classification should be worked through against the current statute and current Commissioner of Administration guidance.

Historical context: what the AG concluded

The opinion's reasoning is a textbook example of using legislative history to defeat a sweeping administrative-agency interpretation.

The Commissioner had read § 13.601, subd. 3 expansively. The Commissioner's view: the new statute restated the general public-data presumption, and since no other statute classified council-applicant "contact information" as private, all of it was public.

The AG read the same statute narrowly, using six sub-arguments.

First, the general rule. All government data is public unless classified otherwise. Most of MGDPA is statutes that classify data as private or confidential.

Second, the personnel-data statute. Section 13.43 reverses the normal presumption: it identifies what's public in subdivision 4, classifies the rest as private. Subdivision 3 specifies public elements for applicants for employment (veteran status, test scores, rank on eligible list, job history, education and training, work availability). Names of applicants are private "except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment."

Third, the elected-official application of § 13.43. MGDPA does not expressly state whether elected officials are "employees" under § 13.43. Prior Commissioner opinions (95-041, 01-039, 02-013, 03-011, 04-064) consistently said that data on elected officials is classified under § 13.43 if the governmental unit treats the official as an employee. Opinion 01-039 specifically held that in a city where council members were considered employees, data on applicants for appointment to a vacant council position were classified under § 13.43, subds. 3 and 4.

Fourth, the practical problem that drove the 2005 legislation: local officials in cities that treated council members as employees were refusing to disclose even the identity of persons seeking appointment to vacant elective offices. That motivated reform.

Fifth, the legislative history. Sandy Maron of the Minnesota Newspaper Association testified to the House Civil and Election Committee on March 29, 2005, that the bill was "narrowly directed to say that anyone who is applying to fill a vacancy in elected office is clearly public data." Senator Don Betzold made parallel statements to the Senate Judiciary Subcommittee on Data Practices on February 24, 2005. The original House and Senate versions were narrow.

But the Omnibus version (HF 225, April 2005) was broader, proposing this language for a new § 13.601, subd. 3: "All data about applicants for election or appointment to a public body, including those public bodies subject to chapter 13D, are public." That all-inclusive language was considered "too broad" in conference and was amended to the narrower enumerated list (name, city of residence, education and training, employment history, volunteer work, awards and honors, prior government service or experience). Senator Betzold on the Senate floor explained that the original language was "found to be overly broad" and "this narrows it down as to the information that will be disclosed."

Sixth, the rules of statutory interpretation. Minn. Stat. § 645.16 lists factors for ascertaining legislative intent when statutory words are ambiguous. American Family Ins. Co. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000), requires interpreting statutes to give effect to all provisions so no language is superfluous. Reading § 13.601, subd. 3 as a wholesale public reclassification would (a) ignore the legislature's deliberate decision to narrow the language and (b) render the specific list of public items superfluous. The narrow reading (subd. 3 is a limited exception to private classifications, lists specific items the legislature wanted public) gives effect to the enacted text and the legislative history.

The AG agreed with the Commissioner on one point: the listing of public data elements in § 13.601, subd. 3 does not mean that "all other data on applicants" is private. It just means that data is private only if some other classifying statute (such as § 13.43) reaches it. But the AG disagreed with the Commissioner's bottom line, because there is another classifying statute (§ 13.43) that reaches data on applicants for appointment in cities that treat council members as employees.

Common questions

Q: My city council treats its members as employees. We just got applications for a vacant council seat. What can I release if a reporter asks?
A: Under the 2006 opinion: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience (all from § 13.601, subd. 3). Also veteran status, relevant test scores, rank on eligible list, job history, and work availability (from § 13.43, subd. 3). Everything else (such as the applicant's home address, phone number, personal email, references' identities, work history details beyond "job history") was classified as private personnel data. Confirm the current state of § 13.43 and § 13.601 before releasing anything; the statutes have been amended since 2006.

Q: What if our city council does not treat its members as employees?
A: Then § 13.43 does not apply at all, and the opinion's analysis does not reach this scenario directly. Under the general public-data presumption (§ 13.03), data on the applicants would be public unless some other statute classified it as private. In practice, whether a city treats council members as employees turns on charter provisions, ordinances, and benefit-enrollment practices, and is itself a question for city counsel.

Q: I'm applying for appointment to a vacant council seat. Will my home address be made public?
A: Under the 2006 opinion, in a city that treats council members as employees, your home address was private personnel data. Only the items listed in § 13.43, subd. 3 and § 13.601, subd. 3 would be released to the public. Note that once you're named as a finalist (under § 13.43, subd. 3's "considered by the appointing authority to be finalists" language) your name becomes public. Confirm the current law before relying on this answer.

Q: How does this opinion relate to the October 6, 2006 AG opinion on city-run background checks of city council candidates?
A: The October opinion explicitly distinguished itself from this July opinion. This opinion is about appointment applicants (someone applies to a city council to fill a vacant seat, and the council selects them). The October opinion is about election candidates (someone files for the ballot and the voters elect them). The October opinion concluded that election candidates are not "applicants for employment" under § 13.43, so the personnel-data classification does not reach them and background data the city collected was presumptively public.

Q: Is the AG opinion binding on the Commissioner of Administration?
A: Yes. Under Minn. Stat. § 13.072, subd. 1(f), a formal AG opinion supersedes a Commissioner of Administration advisory opinion on the same question. After this July 2006 opinion, Commissioner Advisory Opinion 05-036's expansive reading of § 13.601, subd. 3 was no longer the operative state-agency position on data classification for council appointment applicants.

Q: Can a court reach a different result?
A: AG opinions are advisory, not binding precedent. A Minnesota court could read § 13.601, subd. 3 differently. The AG's interpretation closely tracks the legislative history and the canon of statutory construction in American Family Ins. v. Schroedl, which courts apply routinely; a court would likely find the AG's analysis persuasive but is not bound by it.

Background and statutory framework

Minn. Stat. ch. 13, the Government Data Practices Act, defaults to "public" but has many statutory carve-outs. Section 13.43 is the personnel-data carve-out, designed to protect employee privacy while keeping basic information about applicants and employees available to the public.

Whether elected officials are "employees" under § 13.43 has long been left to the governmental unit's own treatment. Cities that put council members on payroll, enroll them in benefits, and treat them as employees for income-tax-withholding purposes generally fall into the "employees" bucket, with the practical consequence that vacancy-fill applicants are treated as employment applicants.

The 2005 amendment that added § 13.601, subd. 3 emerged from concrete frustration: the public, especially newspapers, could not get even the names of applicants for vacant council seats. The original solution would have made all applicant data public. Compromise produced the enacted enumerated list. The Commissioner of Administration's November 2005 advisory opinion read the enacted statute aggressively. The July 2006 AG opinion reset the interpretation to the narrower reading suggested by the legislative history.

Mike Hatch was Attorney General of Minnesota in 2006. Kenneth E. Raschke, Jr., the Assistant Attorney General who authored this opinion, also signed the companion October 6, 2006 opinion (under Chief Deputy Eiden's name) and many other government-data and election opinions in this era.

Citations and references

Statutes:
- Minn. Stat. § 13.03, subd. 1 (2004) (public-data baseline)
- Minn. Stat. § 13.43, subds. 1, 3, 4 (2004) (personnel data; applicant-data public items)
- Minn. Stat. § 13.601, subd. 3 (Supp. 2005) (applicants for election or appointment; public items)
- Minn. Stat. § 645.16 (2004) (statutory interpretation factors)

Cases:
- American Family Ins. Co. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (interpret statutes to give effect to all provisions)

Prior Commissioner opinions:
- Advisory Opinion 05-036, November 18, 2005 (Commissioner reading § 13.601 subd. 3 as wholesale public reclassification; superseded by this AG opinion)
- Commissioner Advisory Opinions 95-041, 01-039, 02-013, 03-011, 04-064 (consistent line treating data on elected officials as § 13.43 personnel data where the unit considers the official to be an employee)

Legislative materials:
- House Civil and Election Committee hearing, March 29, 2005 (testimony of Sandy Maron, Minnesota Newspaper Association)
- Senate Judiciary Subcommittee on Data Practices hearing, February 24, 2005 (statement of Sen. Don Betzold)
- Senate Journal April 7, 2005, at 1617, 1639
- House Journal April 14, 2005, at 1717, 1813
- House Journal May 17, 2005, at 4073, 4075
- Senate Journal May 21, 2005, at 3025

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/852-20060714.pdf

Original opinion text

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

GOVERNMENT DATA: Where members of governing body are considered employees of governmental unit, personal information submitted by applicants for appointment to fill vacancies on the body is private personnel data except for items designated as public by Minn. Stat. § 13.43, subd. 3 and 13.601, subd. 3.

852
July 14, 2006

Terry Adkins
Rochester City Attorney
201-4th Street SE, Room 247
Rochester, MN 55904-3780

Dear Mr. Adkins:

Thank you for your correspondence of January 27, 2006 requesting an opinion from the Attorney General with respect to the issue discussed below.

FACTS AND BACKGROUND

You state that prior to 2005, in cities that considered council members to be "city employees," data pertaining to persons seeking appointment to fill vacancies in council positions was classified as personnel data pursuant to Minn. Stat. § 13.43, subd. 3. This treatment was based on opinions of the Commissioner of Administration dated November 29, 1999 and May 7, 2003.

In 2005, the legislature adopted Minn. Stat. § 13.601, subd. 3 which states:

The following data on all applicants for election or appointment to a public body, including those subject to chapter 13D, are public: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience.

On November 18, 2005, the Commissioner of Administration issued an Opinion 05-036, which concluded that Minn. Stat. § 13.601, subd. 3 merely restated in part the general presumption that all government data are public, and did not have the effect of classifying any data not mentioned in the subdivision as other than public. The Commissioner further concluded that, since no other provisions of law provided for classification of "contact information" for city council applicants or candidates, all data pertaining to applicants or candidates maintained by the city must be considered public.

Based upon the foregoing, you request the opinion of the Attorney General on the following question:

Is government data beyond that listed in Minn. Stat. § 313.601, subd. 3 contained in applications for election or appointment to a public body, whose members are considered to be city employees, classified as public?

LAW AND ANALYSIS

First, pursuant to Minn. Stat. § 13.03, subd. 1, all government data is considered public unless it is otherwise classified by state statute, federal law or temporary classification. Consequently, the bulk of Minn. Stat. ch. 13, the Minnesota Government Data Practices Act (MGDPA), consists of statutes that classify data as other than public.

Second, one such section is Minn. Stat. § 13.43 which deals with personnel data, defined as:

Data on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.

Id., subd. 1. As to personnel data, the MGDPA's normal presumption that government data is public, is reversed. Instead, that section specifically identifies the elements of personnel data that are public and classifies the remainder as private data on individuals. Id., subd. 4.

Subdivision three provides:

Subd. 3. Applicant data. Except for applicants described in subdivision 5 [under-cover law enforcement officers] the following personnel data on current and former applicants for employment by a government entity is public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. Names of applicants shall be private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, "finalist" means an individual who is selected to be interviewed by the appointing authority prior to selection.

Third, the MGDPA does not expressly state whether elected officials are to be considered employees for purposes of section 13.43. Consequently, prior to 2005, opinions of the Commissioner of Administration consistently stated that data concerning elected officials would be classified under section 13.43 if the governmental unit that the official serves considers the official to be an employee. See, e.g., Opinions of the Commissioner of Administration 95-041, 01-039, 02-013, 03-011 and 04-064. Specifically, Opinion 01-039 determined that, in a city where council members were considered to be employees, data concerning applicants for appointment to a vacant council position were classified according to Minn. Stat. § 13.43, subds. 3 and 4.

Fourth, in accordance with these opinions, local officials in many cases would not disclose even the identity of persons seeking appointment to vacant elective offices, and in some instances were also reluctant to disclose information contained in election filings. Consequently, legislation was introduced in the 2005 legislative session to address the issue.

In the March 29, 2005 hearing of the House Civil and Election Committee, Sandy Maron, on behalf of the Minnesota Newspaper Association, addressed a proposed amendment to Minn. Stat. § 13.43, subd. 3 intended to clarify that the names and addresses of applicants for council positions would be treated as public.

This is a very simple bill. [HF 1129] We found that some local officials were nervous about disclosing the names of people who were filing to fill vacancies in elected office. In other words, a city councilperson resigned, they needed to fill the vacancy and then people who were applying, when the public asked for the names of people who are applying to fill these vacancies, some city officials were nervous about disclosing this saying names because it fell under personnel data and they would be in violation of the Data Practices Act. So this bill is simply narrowly directed to say that anyone who is applying to fill a vacancy in elected office is clearly public data and we have spoken about this with the League of Cities, township associations school boards. None of them have a problem with those issues of narrowing it.

Likewise, in a February 24, 2005 hearing on SF 965, the companion bill, before the Senate Judiciary Subcommittee on Data Practices, Senator Don Betzold stated:

Mr. Chair, the issue came up which was brought to my attention that when you have some government entities that are filling positions such as when a city council has a vacancy and the leading members of the city council are trying to fill the vacancy, there is no requirement in the statute that the applicants applying for the vacancy be made public. So you can have a situation where a city council is taking applicants for the vacant city council position, but members of the public might want to know who's applying for the vacancy and they know the public doesn't have to be told until such time that the appointment is actually made. And I think that is clearly an oversight in the statute. I think this is something that the public would have an interest in knowing. So this would require that the identity of the applicants to these government entities become public.

(Emphasis added).

When the proposed clarification was amended into the 2005 Omnibus Data Practices Bill, HF 225, however, the proposed language was much broader than that described in these statements. It would have amended Minn. Stat. § 13.601 to add a subdivision which would read:

Subd. 3. [Applicants For Election Or Appointment.] All data about applicants for election or appointment to a public body, including those public bodies subject to chapter 13D, are public.

(Emphasis added). See Journal of the Senate for April 7, 2005 at 1617, 1639; Journal of the House for April 14, 2005 at 1717, 1813. Ultimately, such all-inclusive language was considered too broad, and was therefore amended to the more limited version quoted above, which passed as section 13.601, subdivision 3. See Journal of the House for May 17, 2005 at 4073, 4075; Journal of the Senate for May 21, 2005 at 3025. As Senator Betzold explained on the Senate floor:

Mr. President, members we already have language in the bill that describes the situation where somebody is applying for an appointment either for say a city council vacancy or some commission appointment. Right now there is no requirement that that information even be public information, so we don't even know whose applying for this situation. But the language that we have in the bill right now was reviewed over the last few weeks and found to be overly broad. This narrows it down as to the information that will be disclosed.

Fifth, Minn. Stat. § 645.16 (2004), provides:

When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters:

(1) the occasion and necessity for the law;
(2) the circumstances under which it was enacted;
(3) the mischief to be remedied;
(4) the object to be attained;
(5) the former law, if any, including other laws upon the same or similar subjects;
(6) the contemporaneous legislative history; and
(7) legislative and administrative interpretations of the statute.

Furthermore, statutes should be interpreted to give effect to all their provisions so that no statutory language is superfluous. See, e.g., American Family Ins. Co. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).

The foregoing legislative and administrative history shows that the enactment of Minn. Stat. § 13.601, subd. 3 (Supp. 2005) was intended to be a measured response to the Commissioner of Administration's numerous opinions that data on applicants for appointment to elective positions would be treated as personnel data if those positions are considered "employment," resulting in a "private" classification for information including the identity and residency of applicants. There is no indication, however, that the legislature intended to supersede the Commissioner's interpretation in its entirety, and render all data on such applicants public under the general presumption of section 13.03. Such an interpretation is inconsistent with the legislature's deliberate decision to reject all-inclusive language in favor of a narrower list of data elements that must be considered public. Such an interpretation would also render the specific terms of section 13.601, subdivision 3 essentially meaningless.

In our view that subdivision is not merely a partial restatement of the general presumption that all government data are public, but a limited exception to a private classification that might be imposed under another statute such as Minn. Stat. § 13.43. Therefore, while we agree with the Commissioner's conclusion that the listing of public data elements in section 13.601, subdivision 3 does not mean that "all other data on applicants" is private, we do not agree that "there is no provision classifying [any] contact information on city council candidates as private." Rather, some data concerning such applicants as well as incumbents of those offices may be classified as private under section 13.43 if the incumbents are considered to be employees of governmental unit they serve.

OPINION

Based upon the foregoing it is our opinion that, where members of a governing body are considered employees of the governmental unit, data submitted by applicants for appointment to positions on the body would be classified as private personnel data pursuant to Minn. Stat. § 13.43, except for those items expressly made public by Minn. Stat. § 13.43, subd. 3 or 13.601, subd. 3.

Very truly yours,

KENNETH E. RASCHKE, JR.
Assistant Attorney General
(651) 297-1141 (Voice)
(651) 297-1235 (Fax)

AG: #1577697-v1