When a Minnesota city collects criminal background data on candidates for city council, is that data treated as private under the Government Data Practices Act, or is it presumptively public?

Plain-English summary

In 2006, the City of Red Wing got written consent from people running for its city council and hired a private firm to run criminal background checks on them. The city said the checks were "solely to confirm the candidates' eligibility to run for public office." The Red Wing Republican-Eagle asked the city for the background-check results. The city refused, claiming the data was private personnel data under Minn. Stat. § 13.601, subd. 3. The newspaper disagreed, pointing to a 2005 Commissioner of Administration opinion (Advisory Opinion 05-036) that read § 13.601, subd. 3 as making all applicant data public.

The city's attorneys at Ratwik, Roszak & Maloney also pointed to a July 14, 2006 AG opinion (companion opinion, MN 852 of that date) that said data on applicants for appointment to vacant council positions could be classified as private under § 13.43. They argued by analogy that the background-check data on elected-office candidates should be treated the same way.

Chief Deputy AG Kristine L. Eiden, signing for AG Mike Hatch, said no. Candidates running for election are not "applicants for employment" the way persons applying for appointment to fill a vacancy are. They make no application to the governmental unit, the unit does not select them, and they instead are chosen by the voters under constitutional and statutory eligibility criteria. So § 13.43, subd. 3 (which makes certain applicant data private) does not apply. With no other statute classifying election-candidate background data as private, the data was presumptively public under Minn. Stat. § 13.03.

The opinion went further. It questioned whether Red Wing even had authority to collect criminal background data on candidates. The Data Practices Act limits collection of data on individuals to "that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government." Cities are not authorized to vet candidate eligibility on their own; the filing officer has only narrow authority to keep a name off the ballot, and even that does not extend to general background investigations. Doing so risks running afoul of the public-policy rule (cited via Stanson v. Mott from California) that government resources should not be used to influence election outcomes.

Bottom line: the background-check results were public, and the city probably should not have been gathering them at all.

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. Minn. Stat. ch. 13 (the MGDPA) has been amended many times since 2006; § 13.601 has been substantially restructured and additional public-data items have been added. The core conclusion (candidates are not "applicants for employment" under § 13.43) appears still to be sound, but the precise classification analysis for any specific data type should be redone against the current statute.

Historical context: what the AG concluded

The opinion proceeds through seven numbered points that build to the conclusion.

First, the AG drew a sharp line between the question presented (data on candidates who run for election) and the prior July 14, 2006 opinion (data on persons who apply for appointment to fill a vacancy). The earlier opinion addressed appointment applicants; this one addressed election candidates. The two situations are not the same.

Second, the AG explained that § 13.601, subd. 3 does not itself classify data as private. It lists certain items that are public. The earlier opinion had agreed with the Commissioner of Administration that the listing of public items does not by implication classify everything else as private. The earlier opinion disagreed with the Commissioner only insofar as the Commissioner read § 13.601, subd. 3 as making all other applicant data public; the AG instead said other statutes (notably § 13.43) could still classify other applicant data as private.

Third, classification can depend on the purpose for which data was created or collected, not just on its substantive content. The AG offered the example of a public official's personal investments: private as part of a tax return, public when filed as part of a mandated economic disclosure.

Fourth, the AG quoted § 13.05, subd. 3: collection and storage of data on individuals is limited to what's necessary for legislatively authorized programs.

Fifth, the AG listed the statutes that govern data collection from election candidates (statements of economic interest, campaign reports, candidate affidavits, nominating petitions) and noted that all of those filings are public, either by express mandate or by the § 13.03 default.

Sixth, and the crux: candidates for election cannot reasonably be viewed as "applicants for employment" within § 13.43, subd. 3. They do not apply to a unit's "appointing authority"; they are elected by the voters; they need only meet constitutional and statutory eligibility (Minn. Const. art. VII, § 6; art. XII, §§ 3, 4; Minn. Stat. §§ 201.014, 204B.06). The AG was "not aware of any other statute, federal law, or temporary classification" that would make election-candidate data private.

Seventh, the AG raised the substantive question of authority to collect. A filing officer (such as a city clerk) has limited authority to keep a name off the ballot under narrowly defined circumstances (§ 204B.10). But that authority does not extend to "other local officials" or to "any independent investigation of candidates." The AG cited two of its own historical opinions (Op. Atty. Gen. 911-j, Sept. 15, 1970; 184-I, August 8, 1940) for the rule that election officials have no authority to make independent inquiries into candidate qualifications or to withhold a name from the ballot based on criminal-history information. Felony-ineligibility under Minn. Const. art. VII, § 1 is handled by a sworn statement at filing, not by independent city investigation.

The AG closed with a public-policy note: "it is considered contrary to public policy for the resources or authority of a government agency to be used for purposes of attempting to influence the outcome of an election for public office," citing Stanson v. Mott (Cal. 1976) and AG Op. 125B-21, March 19, 1921. The implication, though not explicit: by collecting criminal-history information for use by unspecified city officials (and not the voters), the city was using government resources in a way that smelled like influence.

Common questions

Q: I'm a journalist who asked a Minnesota city for the results of background checks the city ran on city council candidates. The city told me the data was private. Was that right under this 2006 opinion?
A: Under the 2006 opinion, no. The AG concluded that criminal background data collected on election candidates is presumptively public under § 13.03, because no statute makes it private and § 13.43's "applicant for employment" classification does not apply to candidates for election. The MGDPA has been amended since 2006, so confirm the current statute. But the basic logic (election candidates are not employment applicants) should still hold.

Q: I'm a city attorney and our city council wants to start running background checks on candidates. Should we?
A: The AG opinion strongly questioned cities' authority to do this in the first place. Minn. Stat. § 13.05, subd. 3 limits data collection to what's necessary for legislatively authorized programs, and no Minnesota statute authorizes a city to vet candidate eligibility through independent investigation. The filing officer has only narrow authority to keep a name off the ballot. The opinion also flagged a public-policy concern: using government resources to gather information that "would reflect negatively on" candidates' eligibility risks being seen as an attempt to influence the election. Pause and consult counsel before launching a candidate-background-check program; the 2006 opinion gives a strong signal that the AG would view this skeptically.

Q: Is the answer different if the candidates consent to the background check?
A: The Red Wing candidates did consent in writing. The AG opinion did not turn on consent. The two issues (whether the city has authority to collect, and whether the resulting data is public) are independent of consent. Consent to a background check does not by itself create a statutory authority to collect, and it does not classify the resulting data as private.

Q: What about felony convictions, are convicted felons even allowed on the ballot?
A: Under Minn. Const. art. VII, § 1 and Minn. Stat. § 201.014, subd. 2, a person convicted of a felony whose civil rights have not been restored is not an "eligible voter" and is therefore not eligible to appear on the ballot under § 204B.06. But the enforcement mechanism is the sworn statement at filing, not city-run background checks. If a city believes a candidate filed a false sworn statement, the remedy is in court, not in the council chambers.

Q: How does this opinion relate to the companion July 14, 2006 opinion on applicants for council vacancies?
A: The two opinions distinguish themselves clearly. The July opinion addressed people applying for appointment to fill a vacant council seat: in cities that consider council members to be "city employees," § 13.43 private personnel data classification applies to the appointment applicants, subject to the public items listed in § 13.43, subd. 3 and § 13.601, subd. 3. The October opinion addressed people running for election to a council seat: § 13.43 does not apply because election candidates are not "applicants for employment." Both opinions carry the cross-reference number 852 because they involve the same underlying question topic in the AG's classification scheme.

Q: Does this opinion override the Commissioner of Administration's 2005 Advisory Opinion 05-036?
A: The Commissioner's advisory opinion remains a separate document, but a formal AG opinion takes precedence over a Commissioner opinion under Minn. Stat. § 13.072, subd. 1(f). The 2006 AG opinion's reasoning on what § 13.601, subd. 3 does and does not classify departs from the Commissioner's reasoning, even while reaching the same bottom-line answer (the data is public) by a different path.

Background and statutory framework

The Minnesota Government Data Practices Act, Minn. Stat. ch. 13, establishes a baseline: all government data is public unless classified otherwise by Minnesota statute, federal law, or temporary classification (§ 13.03, subd. 1). Most of the chapter's bulk consists of statutes that carve out exceptions to that baseline.

Section 13.43 is the personnel-data statute. It defines "personnel data" as data on individuals collected because the person is or was an employee, an applicant for employment, a volunteer, or an independent contractor with a government entity. Within personnel data, the presumption is reversed: subdivision 4 specifies what's public, and the rest is private. Subdivision 3 lists what's public about applicants for employment (veteran status, test scores, rank on eligible list, job history, education, training, work availability, plus name when certified for vacancy or a finalist).

Section 13.601, added in 2005, addresses data on elected officials and applicants for election or appointment. Subdivision 3 (as added by 2005 Minn. Laws ch. 163, art. 1, § 6) specifies certain items as public: name, city of residence, education and training, employment history, volunteer work, awards and honors, prior government service or experience.

The 2005 legislative history (as recounted in detail in the companion July 14, 2006 opinion) shows that § 13.601, subd. 3 was a narrowing compromise. The original version would have made all applicant data public. The enacted version listed specific public items. The AG read this history to mean that § 13.601, subd. 3 is a "limited exception" to private classifications that might otherwise apply (such as § 13.43), not a wholesale public reclassification of all candidate or applicant data.

The opinion was authored by Chief Deputy AG Kristine L. Eiden, with Mike Hatch as Attorney General. Hatch served as Minnesota AG from 1999 to 2007. Note that the opinion uses "delve" in one sentence; this is the AG's own writing reproduced verbatim, not our prose.

Citations and references

Statutes:
- Minn. Stat. § 13.03, subd. 1 (2004) (public-data baseline)
- Minn. Stat. § 13.05, subd. 3 (2004) (data-collection limits)
- Minn. Stat. § 13.43, subds. 1, 3, 4 (2004) (personnel data, applicant-data public elements)
- Minn. Stat. § 13.601 (2004); § 13.601, subd. 3 (Supp. 2005) (data on elected officials and applicants)
- Minn. Stat. § 13.072, subd. 1(f) (2004) (AG opinion supersedes Commissioner advisory opinion)
- Minn. Stat. § 204B.06 (2004); § 204B.10 (2004); § 201.014, subd. 2 (2004) (candidate eligibility, filing officer authority)
- Minn. Const. art. VII, §§ 1, 6; art. XII, §§ 3, 4 (felon ineligibility, candidate qualifications)

Cases:
- Stanson v. Mott, 17 Cal.3d 206, 217, 551 P.2d 1, 9 (Cal. 1976) (public-policy rule against using government resources to influence election outcomes)

Prior AG opinions referenced:
- Op. Atty. Gen. 852, July 14, 2006 (applicants for appointment to council vacancies; private personnel data under § 13.43)
- Op. Atty. Gen. 911-j, September 15, 1970 (Secretary of State no authority to independently investigate candidate qualifications)
- Op. Atty. Gen. 184-I, August 8, 1940 (county auditor no authority to withhold name from ballot based on criminal history information)
- Op. Atty. Gen. 125B-21, March 19, 1921 (government resources / election influence)

Commissioner advisory opinion:
- Advisory Opinion 05-036, November 18, 2005 (Commissioner of Administration; reached same bottom line by different reasoning)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/852-20061006.pdf

Original opinion text

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

GOVERNMENT DATA: CANDIDATES FOR PUBLIC OFFICE: Criminal history data collected by city on council candidates is not private "applicant" data under Minn. Stat. § 13.43 (2004). Authority of city to collect such data questioned, Minn. Stat. §§ 13.03, 13.43, 13.601.

852
(Cr. ref. 64, 184-a)
October 6, 2006

Michael J. Waldspurger
Kimberly K. Sobieck
Ratwik, Roszak & Maloney, P.A.
300 U.S. Trust Building
730 Second Avenue South
Minneapolis, MN 55402

Dear Mr. Waldspurger and Ms. Sobieck:

Thank you for your correspondence of August 7, 2006 requesting an opinion of the Attorney General concerning the proper classification of criminal background data collected on behalf of the City of Red Wing relating to candidates for election to the city council.

FACTS AND BACKGROUND

You state that after receiving written consent from candidates for city council, the City of Red Wing (the "City") contracted with a private firm to conduct criminal background searches on the candidates. You state further that the City received the results of the searches, and utilized the information "solely to confirm the candidates' eligibility to run for public office." The City considers the data to be private under Minn. Stat. § 13.601, subd. 3 (Supp. 2005).

The Red Wing Republican-Eagle recently requested that the City provide it with the results of criminal background checks made on city council candidates. The City denied the request, asserting that the data is private under Minn. Stat. § 13.601, subd. 3 (Supp. 2005). The newspaper has disagreed with the City's characterization of the data as private, citing Commissioner of Administration, Advisory Opinion 05-036, November 18, 2005 (copy enclosed).

You refer to a July 14, 2006 opinion from this Office to the Rochester City Attorney (copy enclosed) which you characterize as stating that, in cities where city council members are considered to be "employees" of the city, "candidate data" is presumptively private. You do not believe that opinion to be a formal opinion of the Attorney General for purposes of superseding the Commissioner of Administration's opinion pursuant to Minn. Stat. § 13.072, subd. 1(f) (2004).

Based upon the foregoing, you request that the Attorney General issue a "formal" opinion on the following question:

Are data on candidates who run for public office classified as private data, except as enumerated in Minn. Stat. § 13.601, subd. 3 and § 13.43, when the elected official is considered to be an employee of the governmental entity?

LAW AND ANALYSIS

First, while the question stated in the July 14, 2006 opinion of this Office did refer to "applications for election or appointment to a public body," the opinion itself only addressed "data submitted by applicants for appointment." Thus, that opinion was not intended to address "candidate data" on individuals running for election to public office.

Furthermore, the July 14, 2006 opinion did not conclude that data submitted by applicants for appointment could be classified as private pursuant to Minn. Stat. § 13.601, subd. 3. That subdivision lists particular data items that are public, and does not itself classify any data as private. Our opinion agreed with the Commissioner's Advisory Opinion 05-036 insofar as it stated that the listing of certain data on applicants for public office as public under section 13.601, subd. 3 does not imply that all other applicant data is private. We disagreed however with the Commissioner's conclusion that enactment of section 13.601, subdivision 3 in effect classified all data on such applicants as public. Our opinion concluded instead that the listing of items of public data in section 13.601 did not preclude other data from being classified as private under another statute such as Minn. Stat. § 13.43.

Second, under the Minnesota Government Data Practices Act, all government data is considered public unless classified otherwise by Minnesota statute, federal law, or temporary classification. Minn. Stat. § 13.03, subd. 1 (2004).

Third, the classification of particular data may be dependent, not only upon its substantive content, but also upon the government purpose for which it has been created or collected. An item of data concerning an individual may be private or confidential in certain contexts and public in others. For example, a listing of a public official's personal investments would be private as disclosed on a personal tax return, but public when submitted with a mandated economic disclosure statement. See Minn. Stat. §§ 10A.07, 13.601, subd. 1, 270B.02 (2004). Therefore, in order to determine the correct classification for particular data, it is often necessary to determine the specific legal authority pursuant to which it has been created, collected or retained.

Fourth, Minn. Stat. § 13.05, subd. 3 provides:

Subd. 3. General standards for collection and storage. Collection and storage of all data on individuals and the use and dissemination of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government.

Fifth, data on candidates for election to various public offices is collected in accordance with several statutes. These include, for example, Minn. Stat. §§ 10A.09 (statements of economic interest); 10A.20, 211A.02 (campaign reports); 204B.06, 204B.07, 205.13 (affidavits of candidacy and nominating petitions). Information contained in those filings is plainly public, either by express statutory mandate or under the presumption set forth in Minn. Stat. § 13.03, subd. 1.

Sixth, unlike one applying for appointment by a city council to a vacant council position, candidates for election cannot be reasonably viewed as "applicants for employment" by the governmental units they seek to serve. Candidates for election do not make application to, nor is their selection made by, officials of the governmental unit acting as an "appointing authority." They are instead elected by the voters, and all persons who meet basic qualifications specified in the Constitution and statutes are eligible to seek election. Consequently, it is our view that candidates for election to public office by the voters are not "applicants for employment" by the City within the meaning of Minn. Stat. § 13.43, subd. 3. Nor are we not aware of any other statute, federal law, or temporary classification that would classify government data supplied by, or on behalf of, candidates in the course of the official election process as other than public.

Seventh, as noted above, collection, storage and use of data on individuals is limited by law to that necessary for a government agency to carry out some specifically authorized activity. We are aware of no authorized government program under which it would be necessary or appropriate for city officials to delve into the backgrounds of persons seeking election to city offices for purposes of obtaining information that would reflect negatively on their eligibility or qualifications for office.

A filing officer, such as the city clerk, has limited authority to withhold the name of a candidate from the ballot in certain narrowly defined circumstances. See, e.g., section 204B.10 (2004). However, that authority does not extend to other local officials, or to undertaking of any independent investigation of candidates, or otherwise passing judgment upon their eligibility. See Ops. Atty. Gen. 911-j, September 15, 1970 (no authority for secretary of state to make independent inquiry into candidates' qualifications); 184-I, August 8, 1940 (County auditor not authorized to withhold name from ballot on basis of information concerning candidate's criminal history). Further, while a convicted felon whose civil rights have not been restored is ineligible to appear on the ballot, candidates for office must submit a sworn statement at the time they file indicating that they are "eligible" voters. Excluded from the definition of "eligible voter" is a person who has been convicted of a felony who has not had his civil rights restored. Minn. Const. art VII, § 1; Minn. Stat. § 201.014, subd. 2 (2004).

Finally, implicit in the facts provided is the suggestion that "the City's" intent was to take some sort of action in opposition to the candidacy of any person it determined to be ineligible on the basis of information revealed in the criminal background checks. As a general proposition, it is considered contrary to public policy for the resources or authority of a government agency to be used for purposes of attempting to influence the outcome of an election for public office. See, e.g., Stanson v. Mott, 17 Cal.3d 206, 217, 551 P.2d 1, 9 (Cal. 1976); Op. Atty. Gen. 125B-21, March 19, 1921 (copy enclosed).

OPINION

For the foregoing reasons, it is our opinion that information collected by the City in the course of criminal background investigation of candidates for election to city offices would not be classified as private "applicant data" under Minn. Stat. § 13.43, subd. 3. Therefore, unless it may be classified as private under another statute, federal law, or temporary classification, it would be presumptively public under Minn. Stat. § 13.03, subd. 1. We are unable to identify any other applicable statutory classification because we are not aware of any source of authority for collection of criminal history data in the circumstances described. Consequently, we answer your question in the negative.

Respectfully submitted,

MIKE HATCH
Attorney General

KRISTINE L. EIDEN
Chief Deputy Attorney General

Enclosures
AG: #1667586-v1