Data Practices & Records Retention Scott M. Kelly LMC Staff Attorney October 6, 2011

Session Overview  Government Records & Data  Presumptions  Important Terms  Roles & Responsibilities  Focus: HR & Payroll  Recommendations  Scenarios  Questions

Why is this Important  Documentation: Decision-making Process  Balancing Act - Rights and Needs:  Public  Individuals  Government  Consequences for Noncompliance

Why is this Difficult  Laws are:  Subject to interpretation  Contrary to:  Past city practices  Personal experiences  Always changing  Conclusions are often fact-based  Officials choose to comply

Laws and Responsibilities All Government Units Must:  Secure & provide access to:  Government data  Create, retain & manage:  Official records

Data and Records

Government Data Minn. Stat. Chapter 13 & Minn. Rules 1205  All data collected, created, received, maintained, or disseminated by the government entity  Regardless of physical form, storage media, or conditions of use

Purpose of the “Act”  Classifies for Accessibility  Provides rights and safeguards for:  The Public  The Data Subjects  Requires data be accurate, complete, current and secure

Presumption

Public  Available:  To anyone  For any reason  Minutes, ordinances, agendas, policies, contracts,...

Private-Nonpublic  Available to:  Data Subject  Staff whose work requires access  Other entities as required by law  Persons authorized by data subject  Sealed bids, recording of closed meetings, absentee ballots, SSNs, social recreational data,...

Confidential-Protected Nonpublic  Available to:  Staff whose work requires access  Other entities as required by law  Not available to Data Subject  Property complaints, appraisal data, arson reports, investigations,...

Tennessen Warnings  Individuals asked to supply private or confidential information must be told:  Purpose – Use of Data  Legally required to provide?  Consequence for providing-refusing to provide  Identity of other persons/entities authorized to receive information  Use data differently – Informed Consent

Personnel Data Data collected because the individual is or was:  An Employee  An Applicant for Employment  Volunteer  Independent Contractor*

Presumption

Public Information – In General  Name  Actual Gross Salary  Job Title  Education & Training  Previous Work Experience  First-Last Day of Employment  Work Location   Badge Number   Honors and Awards   Job Description   Value & Nature of Employer-Paid Benefits / Pension   Bargaining Unit   Payroll Information   Buyout Agreement

Public Information - Applicants  Veteran status  Relevant test scores  Rank eligible list  Job history  Education and training  Work availability  Names private until the applicant is selected for an interview by the appointing authority

Public Information - Discipline  Existence/Status of Complaints or Charges against Employee  Final Disciplinary Action  Reasons for Action  Documentation of Basis  Cannot agree to destroy or limit access to data

Responding to Data Requests

Officials Specific employees responsible for carrying out the requirements of the Act:  Responsible Authority  Designee(s)  Data Practice Compliance Officer

Request for Information City response to request will vary if request is by:  A Member of the Public  The Data Subject

Member of the Public 1) Public Data  Free Inspection  Pay for Copies 2) “Not Public”  Deny request  Provide statutory basis for denial 3) Doesn’t Exist  Not required to create data  Notify request data doesn’t exist  Response: “As soon as reasonably possible”

Data Subject 1) Public or Private Data  Free Inspection  Pay for Copies 2) Confidential Data  Deny request  Provide statutory basis for denial 3) Doesn’t Exist  Not required to create data  Notify request data doesn’t exist  Response: Immediately or within 10 business days

Penalties

Official Records Minnesota Statute §  Must create records necessary for a full and accurate “knowledge of official activities”  Paper, , Photographs, Video/Audio Recordings, Maps, Charts, CD ROMs, DVDs, Servers, Flash drives,...

What’s a Record? Records   Ordinances & Resolutions   Meeting Minutes   Petitions & Complaints   Policies   Contracts & Finances   Permits & Licenses   Election Information   Utilities   Payroll – HR Information   Etc., Etc., Etc. Not Records   Data and other Information that will not become part of “Official Transaction”   Library/Museum Materials kept for Reference or Exhibit   Extra Copies of Documents   Publications – Other Processed Documents

Records Preservation Minnesota Statutes Chapter 138  Must preserve official records  Follow Records Retention Schedule for disposing of records no longer:  Needed  Required by law  Safeguards for destruction

Evaluating Records Present and Future Value

Administrative Value  Records created to fulfill city responsibilities:  Annual reports  Correspondence  Committee minutes  Policies and procedures  May have long or short-term value

Fiscal Value  Needed for audit purposes  Accounting records  Audit reports  Budgets  Grants  Payroll records  Local government fiscal records are retained for at least six years.

Inventory  Identify all materials in offices and storage areas  Separate records from non-records  Similar records grouped together  Appraise value  Estimate stability of records  Compile a detailed inventory

Preservation  Safe storage environment  Stable temperatures & relative humidity  Dry (off storage room floor)  Limit/eliminate amount of direct sunlight  Proper security  Restrict access to facility  Separate from public areas  Offsite storage

Retention Period  Values determine how long records must be kept  Permanently  Four years  6 months after audit  Retention periods  Apply to records  Do not apply to government data

Destruction  Destruction must be in accordance with:  Approved records retention schedule  Specifically approved by Disposition Panel  No prescribed method  Recycling or incineration preferred  Protect “not public” data  Retain “Records Destruction Report”

Recommendations 1) Work from the statutory presumptions.  Government data is public  Personnel data is not public 2) Know who your data practices officials are.  Responsible Authority, Data Practices Compliance Official, Department Designees 3) Know your policies & protocols for recordkeeping and data practices requests. 4) Dispose of city records only as provided in your city’s records retention schedule.

Questions?

Scenarios

Scenario 1 Person walks into your office and asks: “How could the city council approve salary increases for all you public employees? Don’t they care how tough it is for all of us right now?” How do you respond?

Data vs. Questions  Only requests for data are governed by Data Practices Act  Questions are outside the scope of this law  “I would like all the data documenting why the city council approved the salary increases.”

Scenario 2 Written request for Data: “I want Joint Powers.” Response?

Clear & Understandable Minn. Stat , subd. 12 A person may be asked to provide certain identifying or clarifying information for the sole purpose of facilitating access to the data.  Can’t ask why they want it  Can narrow broad or confusing request to one city can respond to

Scenario 3 In Writing: “I would like all of the 2008 Planning and Zoning Committee and 2008 City Council Meeting Minutes.”  Any Important Information Lacking?

Inspection or Copies Depends on who makes the request:  Inspection  No Cost Imposed  Copies  “Public” Request  25¢ per page – 100 copies or less  All other copy requests – “actual cost”  Data Subject Request  “Actual costs”

Scenario 4 Resident who is unhappy with city’s snowplowing efforts:  Goes down to the Public Works Garage get the Snowplowing Policy.  Talks to employee in garbage.  Employee gives him a copy. Problems?

Responsible Authority Responsible Authority or Designee responsible for data practices decisions  Was employee a designee?  Provide current policy?  Written requests?  Copy costs?  Give out only copy of policy?

Scenario 5  Employee tells resident to “Help Yourself” to copy of snowplowing policy in file cabinet.  File cabinet also includes:  Real Property Complaints  Information on personnel:  Work-Injuries  Social Security Numbers  Red-Flags?

Security Safeguards Minn. Stat , subd. 5(a) Responsible authority must establish appropriate security safeguards for all records containing data on individuals  Prevent access to “Not Public” Data  City safeguards defeated by “open access”

Scenario 6 Written Request: “I want to inspect Scott Kelly’s Personnel File.”  Personnel data Presumed Private, but there is information the public can access.  What does our response to this request depend upon?

Requestor’s Identity If requestor is:  Member of the Public  Access limited to Public Data  Response - As Soon as Reasonably Possible  Data Subject  Access to Public & Private Data  Response – Immediate/ within 10 days  Written Consent from subject for 3 rd person?

Scenario 7 Public Works employee wasn’t plowing streets pursuant to policy and receives “Oral Reprimand”  Do we have (should we have) any record-keeping requirements?

Records: Creation & Retention Practical Needs for your Records  Official Records Act  Includes city administrative functions  Hiring, firing, managing employees  Records Retention  Five years after termination  Final Disposition  Public Record - Accessible

Scenario 8 City Council holds meeting to discuss “Preliminary Allegations of Misconduct” against employee:  Employee demands meeting be open to the public  Council references and reads from report alleging misconduct  private/confidential information  No final decision on allegations made by council  Can public :  Access report?  Recording of open meeting?

OML - “Not Public” Data Minn. Stat. 13D.05  Not public data may be discussed at a meeting without liability or penalty if:  If it relates to a matter within the scope of the public body's authority  Is reasonably necessary to conduct the business or agenda item before the public body.  Data discussed at an open meeting retain it’s original classification  Record of the open meeting is public.

Scenario 9 Written Request: “Copies of the City Council minutes from January 1, 1977 through January 1, 1982, in a Microsoft Word compatible format.” Minutes do not exist in that format  Do you have to create?

Electronic Records Minn. Stat , subd. 3(e)  Public data maintained in an electronic medium must be provided in that form if reasonable to have copy made.  Not required to provide data in a format different than format or program it is being maintained in.

Scenario 10 In Writing: “I am requesting copies of all future city council meeting minutes once they are approved?”  Do we have to respond to this request?

Standing Requests Not specifically addressed in the Data Practices Act, BUT because:  Language of the Act is quite broad  Advisory opinions from IPAD  Appears we have an obligation to respond

Scenario 11 A member of the city council wants to look at an employee’s personnel file.  Does an individual councilmember have the right to access the information?

Council Authority Consult Legal Counsel  Can access all Public Data  Depends on Form of Government  Home Rule Charter City  Where is authority delegated  Statutory City  Standard Plan & Plan A  Council exercises authority together  Plan B  City Manager is authority

Scenario 12 Written Request: “For copies of all letters of reprimand or final disciplinary actions, including background data, for former employee Tom Brown.” Tom resigned twenty years ago, but we still have his personnel file somewhere in storage. Does we have to respond to request?

Records Management  Need to respond to requests for data we have, regardless of our ability to destroy records pursuant to our retention schedule  Need to maintain/store records in a manner that allows us to respond to requests pursuant to the law

Need Help?  Colleagues and Legal Counsel  League of Minnesota Cities 145 University Avenue West St. Paul, MN (800) (651)  Request opinion from the department of administration (IPAD)  Request opinion from the attorney general

Scott M. Kelly Staff Attorney League of Minnesota Cities (651)