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5.1. ERMUSR 03-08-2011MEMORANDUM TO: Board of Commissioners Elk River Municipal Utilities FROM: Peter Beck, ERMU Attorney DATE: Februazy 17, 2011 RE: Minnesota Open Meeting Law Minnesota Government Data Practices Act Attached are some materials from the League of Minnesota Cities regazding the Minnesota Open Meeting Law and the Minnesota Government Data Practices Act. With respect to the Open Meeting Law, I have included an excerpt from the Handbook for Minnesota Cities and a League Memorandum regarding electronic communications between council members. With respect to the Data Practices Act, I have included an LMCIT Risk Management Information memo and an excerpt from the LMC Mayors Handbook. Although I would encourage the Boazd to review the entire documents regarding the Open Meeting Law, I have highlighted them directing boazd members to the language I think the board should pay particular attention to. I will focus during the March meeting on the areas and issues that I have highlighted. You will note that I have not highlighted much regazding the Government Data Practices Act. Although compliance with the Data Practices Act is one of the most challenging responsibilities of ERMU staff, I have highlighted only the types of data board members might be in possession of which is subject to the Act. No need to read the entire document, unless you aze interested. Although these materials reference City Council members, the open meeting law applies to the ERMU Board just as it does to the City Council. In fact, the open meeting law issues are of particular concern with respect to the ERMU Board, because any two members of the ERMU Board constitute a yuo;um. Therefore, it is important that no two board members discuss or exchange emails about ERMU business, or even receive information regarding ERMU business, outside of a properly noticed meeting. Conversations or emails between a single boazd member and staff aze fine, but board members should avoid conversations and emails between themselves regazding ERMU business. Please bring questions to the Mazch meeting. I look forward to a good discussion regarding the Open Meeting Law and the Data Practices Act. GP2931126 vl CxArrEx r B. Open meeting law 1. Purpose of the open meeting law Sr. rrnnd:veutgmperr, na~. ~. The open meeting law requires that meetings of public bodies must Dill. N? C'ommunim Sohnn7s, 33z N w zd I (Minn. 19s3> generally be open to the public. It serves three vital purposes: • Prohibits actions from being taken at a secret meeting where the interested public cannot be fully informed of the decisions of public bodies or detect improper influences. • Ensures the public's right to be informed. • Gives the publican opportunity to present its views. 2. Groups governed by the open meeting law Minn. staz., 13D.01, Subd. I; Under the Minnesota open meeting law, al] city council meetin s and Minn. Staz. ~ 465.719, sutxl. 9. ' executive sessions must be open to the public, wit on~Ty a > w exceptions. ,5 wnhern alinnesoro thrnici)uil Prover 1,Qenty v. Bnrne. 578 e o n meeting law also requires meetints of any committee, N w zd 362 rnlinn )9est subcommittee, board, department, or commission of a public body to be open to the pub )c. a govemmg o les o oca pub Ic pension plans, housing and redevelopment authorities, economic development authorities, and city-created corporations are subject to the open meeting law. The Minnesota Supreme Court has held, however, that the governing body of a municipal power agency, created under Minn. Stat. §§ 453.51-453.62, is not subject to the open meeting law because the Legislature granted these agencies authority to conduct their affairs as private corporations. 3. Gatherings governed by the open meeting law annerx ~ rn/n•P s~-h. n..,, A:> ' The open meeting law does not define the term "meeting." The Minnesota Zb /, 336 N. W,2d 510 (Minn. 19s3>. Sr. cm„n v,>K:P/rJ,~~z Supreme Court, however, has ruled that under the open meeting law, ln,: ~. non ;n cn.nnimiin~ ~ meetint=-s are earherin2s where a quorum or more of the council or other sd~nnl5, 33z N.w.zd i cM nn governing body or of a committee, boar a ent or commission of the 1983). y count( or o er emmg ody are present, and at whto the mein er~sintention~7is , d_ a „tide or information as a ero~ on issues relating; to the official business of t~oay. As a result, the open meeting law does not generally apply in situations where less than a quorum of the council is involved. However s meetings in groups of less than a quorum that are held in order to avoid the HANDBOOK FOR MINNESOTA Crr1e5 This chaplet 185[ revised 12/2010 7:9 Cxnrrax 7 a. Interviews "°°t°'°''~P1 "rz.rr " c,r, °f The Minnesota Court of Appeals considered a situation where individual :ti rqh MnnAxrM, 563 N. W.2d zrn tM1tinn ct .app. iv~m councilmembers conducted separate interviews of candidates for a city position. The district court had Found that no "meeting" of the council had occurred because there was never a quorum of the council present during the interviews. The court of appeals sent the decision back to the district court for a determination of whether the councilmembers had conducted the interview process in a serial fashion to avoid the requirements of the open meeting law. nn,,,An,rr Tree r',r„ ~ cii> ~~ On remand, the district court found that the individual interviews were not :tlnnlr :L/an/mm_ Nu. C9-9a-fi]7 ~Mn,n. ct. npp ne<. ts, ieea) done to avoid open-meeting-law requirements. This decision was also tunpumisned aecision> appealed, and the court of appeals affirmed the district court's decision. Cities that want to use this type of interview process with job applicants should first consult their city attorney. b. Informational meetings sr. cro~~;ve,r~sl>a~e.,. /nc. v. The Minnesota Supreme Court has held that informational seminazs about Dial i{; ('°nmruniq•Sehn°IS, s,z N w za i iMion lass) school-board business, which the entire board attends, must be noticed and open to the public. As a result, it appears that any scheduled atherin s~ quorum of a public body must have proper notice an be open, whether or influence later decisions, but excludes chance or social quorum of members of a public o y, owever, cannot m orma wn ono tcta usmess m any setting under th may i~- rhunw ~. n..,,<<he/, sob N.w.za Under certain circumstances, it may be possible for a quorum of the council w IMm~ a app. res3>. to attend a meeting of another public body without violating the open "~' o° "'"-'t''°E 'a' ~~""" meeting law even though notice of a special council meeting is not provided. For example, when persons constituting a quorum of a city council attended a meeting of the city's planning commission, the Minnesota Court of Appeals ruled that there was a violation of the open meeting law-not because of the councilmembers' attendance at the meeting-but because the councilmembers conducted public business in conjunction with that meeting. Based on this decision, the attorney general has advised that mere attendancelw °~'~~*^^°' ~^~)ncilmembers at a meeting of a council committee held in compliance with the open meetine notice. The attorney general advised, however, that the additional councilmembers should not participate in committee discussions or compare sr. a<„rn:ver~ «rnr,~s. It is not clear whether the participation of a city council in a tra_ fining _ Inc r. Ui.n. 7{? l:nnnnurri0~ sin:>°r,, ssz N w.2a t (Minn. program sponsored by the League of Minnesota Cities to develop various teas) ~;rn n c op 63aa s t s wou be defined as a meeting under the open meeting law. The rren. s. ie]st. determining factor may be whether the program includes discussions of specific matters relating to an to tvt ua city's business. T10 This chapter last revised 122010 Leneue or MMNESOre CrrrE$ CHAPTER 7 c. Technology MobrrR ~. /ndr/,. srh v;.rr. n'o tt is not entirely cleaz how the open meeting law applies to technology, zx/, ase rl w.zd slO [Minn such as a-mail or tale hone calls. Althou h the law does not s ecificall 1983); See LMC Information p g p y Memo, r4lrrr/ngs nfCilr address the use of a-mail and other technology, it is possible that any form Cormcils, for more information of communication between councilmembers or mein ers o o er pu w bo les cou vlo ate t e open meeting law un er certain circumstances. Elrclrnnir Cmm~nmicnlions Qrnrzzn Counc ilm¢mbzrt, LMCIT risk management memo; IPAD OU-U'0 • When city businesses is being discussed.. 4. Open meeting exceptions The open meeting law is designed to favor public access. Therefore, the few exceptions that do exist are carefully limited to avoid abuse. Minn. Smr 4 i ono>, soon All closed meetings, except those closed as permitted by the attorney-client itd). privilege, must be electronically recorded at the expense of the public body. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting. mrnn. swt. § laonl-und..; Before closing a meeting under any of [he following exceptions, the public Minn. Sta[. § 13D UJ, uihd. 5; See 1'he Frrr Press r~. Cuung. of body must state, on the record, the specific erounds that permit the meetin@ en,r Gn,m, en n wzd an to he closed and describe the subject to be discussed. The same notice (bfmn. ct. npp. zonal molding ' requirements that a ply too en meetin also apply to close-d m gs. that the county s statement that ii was closing a meeting under or example, if a close meeting takes place at a regu az meeting, t e notic the at[omey-client privilege to requirements for a regular meeting apply. Likewise, if a closed meeting discuss "pending litigation" did takes place as a special meeting or as an emergency meeting, the notice not satisfy the requirement of describing the subject to 6e requirements for a speciat meeting or an emergency meeting would apply. discussed at the closed meeting). a. Labor negotiations "n^^ star >` i 3n cq, cond. i The city council may, by majority vote in a public meeting, decide to hold a 1n)- closed meeting to consider its strategy for labor negotiations, including negotiation strategies or developments, or discussion of labor-negotiation proposals. The council must announce the time and place of the closed meeting at the public meeting. HANDBOOK FOA MINNESOTA CFro9S Thi9 Chapter last revised 82010 T I I • When a uoq rum of the council or public body will be contacted regarding the same matter. GRAPIER 7 nl~~,~~ stm 1 ~~ o~, F,~ta, 1 After [he closed meeting, a written record of all members of the city 1`11' "' council and all other people present must be available to the public. The council must tape-record the proceedings at city expense, and preserve the tape for two years after signing the contract. The tape-recording must be available to the public after all labor contracts aze signed for the current budget period. mm" Sta, ~ ro oi, sand ~ tf someone claims the council conducted public business other than labor negotiations at the closed meeting, a court must privately review the recording of the meeting. [f the court finds the law was not violated, the action must be dismissed and the recording sealed and preserved. If the court determines a violation of the open meeting law may exist, the recording may be introduced at trial in its entirety, subject to any protective orders requested by either party and deemed appropriate by the court. b. Not-public data n11nn. star ~ I ~n os, sand. z. The general rule is that meetings cannot be closed to discuss data that are not public under the Minnesota Government Data Practices Act. A meeting must be closed, however, if certain not-public data is discussed. For example, any portion of a meeting must be closed if expressly required by law or if any of the following types of not-public data are discussed: • Data that would identify victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults. • Active investigative data created by alaw-enforcement agency, or internal-affairs data relating to allegations of law-enforcement- personnel misconduct. • Educational, health, medical, welfare, ormental-health data that are not public data. "''"" Srat § 1,"291 -.2vs • An individual's medical records governed by Minn. Star. §§ 144.291 - 144.298. nu"" swt § 1 so os. ~~nd A closed meeting held to discuss any of the not-public data listed above ua~. must be electronically recorded, and the recording must be preserved for at least three years after the meeting. Mnin. Swc. ; ro.o,, send. 1 Other not-public data may be discussed at an open meeting without liability 11ij 1i 1 or penalty if the disclosure relates to a matter within the scope of the public body's authority, and it is reasonably necessary to conduct the business or agenda item before the public body. The public body, however, should make reasonable efforts to protect the data from disclosure. Data discussed at an open meeting retains its original classification; however, a record of the meeting shall be public. 7:12 This chapter last revised 122010 LEAGUE OF MINNESOTA CRS CHAPTER 7 c. Misconduct allegations or charges Minn. Brat. ~ I sD os, 5m,a.. A public body must close one or mare meetings for `breliminarv I(dt. 2 (~) consideration" of allegations or chazRes of misconduct against an subject to its alanonty. a the members conclutle disclpune of any nature may a wartante , u er meetings or hearings relating to the specific charges or allegations [hat are held after that conclusion is reached must be open. This type of meeting must be open at the request of the individual who is [he subject of the meeting. This type of meeting must be electronically recorded, and the recording must be preserved for at least three years after the meeting. d. Performance evaluations bllnn. star g lands. subds " A public body may close a meeting to evaluate the performance of an na). 3,a) ;see Employ« Discipline and the Open individual who is subject to its authori .The ublic bod must identi the ~ Ty P y '7 Meeting Lew," Minnesota individual to be evaluated prior to closing the meeting. At its next open Cities, Sept. 1997 for more meeting, the public body must summazize its conclusions regazding the inrortnation. evaluation. This type of meeting must be open at the request of the individual who is the subject of the meeting. If this type of meeting is closed, it must be e]ectronically recorded, and the recording must be preserved far at least three years after the meeting. e. Attorney-client privilege Minn StnL : BROS. suhd 3 in) ilrnMerd 7krih Diepnr<~h, l.l.(' n Oel+un. 693 N. W2d 335 (Minn. Ct. .App 91101); Print Luke Awrncon r. 1lndcr, bl^_ N.W'.2d T91 Minn 2002); h'onh+vesr Publicarians, lrr.: r. Cin of.9. Penrl, 435 N.W.2d 64 (Minn. Ct. APR 19891; ,liinnerryolis Smr' ct frihune r. Hnnsirtg wai NrJNelnpmrnr Authnri!Y in mrJ )or the Ci0~ of ,tiiunenpnhs. 251 N. W.2d 620 (Minn. 1976). A1inn. Smt C 13D.Oi, uihd. i (~'I, Stt Mina Stat 5 13.43. suha 3 A meeting may be closed if permitted by the attomey-client privilege. Meetings between a governmental body and its attorney to discuss active or threatened litigation may only be closed, under the attorney-client privilege, when a balancing of the purposes served by the attomey-client privilege against those served by the open meeting law dictates the need for absolute confidentiality. The need for absolute confidentiality should relate to litigation strategy, and will usually arise only after a substantive decision on the underlying matter has already been made. This privilege may not be abused to suppress public observations of the decision-making process, and does not include situations where the council will be receiving general legal opinions and advice on the strengt~an wea esses o a propose ~eTmg acUO- n t aTi t may give n- s~utwe Irttgahon. f. Purchase or sale of real or personal property A public body may close a meeting to: • Determine the asking price for real or personal property to be sold by the public body. • Review confidential or protected nonpublic appraisal data. • Develop or consider offers or counteroffers for the purchase or sale of real or personal property. HANDarX1K FOR MQJNESOTA CRS This chapter latt revised 12/2010 7:13 GRAPIER / n1im, star uoos, anba i Before holding a closed meeting under this exception, the public body must 1cI identify on the record the particular real or personal property that is the subject of the closed meeting. The closed meeting must be tape-recorded. The recording must be preserved for eight years, and must be made available to the public after all real or personal property discussed at the meeting has been purchased or sold, or after the public body has abandoned the purchase or sale. The real or personal property that is being discussed must be identified on the tape. A list of members and all other persons present at the closed meeting must be made available to the public after the closed meeting. The actual purchase or sale of the real or personal property must be approved at an open meeting, and the purchase or sale price is public data. g. Security reports rvbnn smt § uu os. snba a Meetings may be closed to receive security briefings and reports, to discuss (al 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 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 public body must when describing the subject to be discussed, refer to the facilities, systems, procedures, services or infrastructures to be considered during the closed meeting. The closed meeting must be tape-recorded, and the recording must be preserved for at least four years. 5. Penalties Minn. swt. uoue, tuba. I. Any person who intentionally violates the open meeting law is subject to persona] liability in the form of a civil penalty of up to X300 f_ or_ a s_ i_ nQle, c[I,»,te ,. cnm».:, sl s x w za occurrence. The public body may not pay the penalri. A court may take ate (Ming. 199a>. into account a councilmember's ttme and experience in office to determine the amount of the civil penalty. rvr"^ smt s I to ne. subd =. An action to enforce this penalty may be brought by any person in any court of competent jurisdiction where the administrative office of the governing body is located. "nnn s",' s Isncle. sobd a; The court may also award reasonable costs, disbursements, and attomey $eE [)(k 11 !~(fYrfn,1 tOIV ntlJCR4P Crn~ealRa. ~MCrr nsk fees of up to $13,000 to any party in an action alleging a violation of the management memo, (or open meeting law. The court may award costs and attomey fees to a information about insurance defendant only if the action is found to be frivolous and without merit. A coverage for open-meeting-law violations. public body may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its members. 7:14 This chapter lazt revised 12/2010 LeAGUE of MIKNESOTA Ccr1E5 CHAPTER 7 Minn. Smt I so ob, s~bd ; if a party prevails in a lawsuit under the open meeting law, an award of reasonable attorney fees is mandatory if the court determines that the public body was the subject of a prior written advisory opinion from the commissioner of the Deparhnent of Administration, and the court finds that the opinion is directly related to the lawsuit and that the public body did not act in conformity with the opinion. A court is required to give deference to the advisory opinion. Minn. star g i 30 or,, s~nd.4 No monetary penalties or attomey fees may be awarded against a member ul); c<~„n~~en,~. Mw,~gv. Nn Cb-9~-2436 (A1 inn. CI. .App. of a public body unless the court finds there was intent to violate the open Aug 6. 19961 (unpublished meeting law. decision). Minn. star. g unrM, subd. 3 If a person is found to have intentionally violated the open meeting law in la); Braun r. Cannon FoAs Ttnvnrhip, T 3 N. W.2d 31 three or more se orate actions involvin the same ovemin bod ,that P g g g y inainn. ct. App. 2ooe1. person must forfeit any further right to serve on the governing body or in any other capacity with the public body for a period of time equal to the term of office the person was serving. Mmn. star ; laoob, mbd. 3 If a court finds a separate third violation that is unrelated to the previous 'nl , violations, it must declare the position vacant and notify the appointing authority or clerk of the governing body. As soon as practicable, the appointing authority or governing body shall fill the position as in the case of any other vacancy. Nunn. cons[. an. val. s Under the Minnesota Constitution, the Legislature may provide for the .meunrrn e. .angel, zss Minn. removal of public officials for malfeasance or nonfeasance. To constitute 300, 96 N.W.2d 569 (Minn. 1959). malfeasanee Or ^OnfeaSance, a public official's conduct must affect the performance of official duties and must relate to something of a substantial nature directly affecting the rights and interests of the public. do«,nre,~ v. xrcge/, 255 Minn. "Malfeasance" refers to evil conduct or an illegal deed. "Nonfeasance" is 700, 96 N. W.2d 569 (Minn 1959); Claude r. <"'ollircc, 518 desCItbed a5 Re lect or refusal, without sufficient excuse, to erform what g P N.w.zd 836 (Minn. 1994>, is a public officer's legal duty to perform. More likely than not, a violation of the open meeting law would be in the nature of nonfeasance. Although good faith does not nullify an open•meeting-!aw violation, good faith is relevant in determining whether a violation amounts to nonfeasance. s„r/lvarc v credo B;, er Minnesota courts have generally refused to invalidate actions taken at an Tmm~shiy, 299 Mmn. 170, 217 N.W.2d 502 (Minn, 1974); /n re improperly closed meeting. n R a track L/ne, n,e.. sa N.w2d I (Mmn. Ct. App. 1994); Luc Oui Pnrle-}'r//rnv Bank H'urrrrhed Dist r. 11'nllscninger. No. Cb-96-I 1123 I Nlinn. Ct. App. Nov. 12. 1996) (unpublished decision). HANDBOOK FORMMNESOTA CRIES This chapter last mvised 122010 T.IS j-,EAGUE of CONNECTING & INNOVATING (~[NNESOTA sr"cr E9L3 CITIES RISK MANAGEMENT INFORMATION ELECTRONIC COMMUNICATIONS BETWEEN COUNCIL MEMBERS Electronic communication such as e-mail correspondence, instant messaging, social media, and blogs and microblogs, can be an unintentional conduit for city officials to violate the Minnesota Open Meeting Law. Elected officials and city committee and board members should be aware of the following issues to avoid Inadvertent violation of this law. The Open Meeting Law Under the Minnesota Open Meeting Law, Minn. Stat. § 13D, meetings of at least a quorum of the city council or one of its committees to discuss city business must be publicized and open to the public, subject to a few exceptions. A primary purpose of the ]aw is to make sure information and deliberations about city business are available to the public. The law applies to any discussion about city business, not just voting or official gathering of a quorum of the council or committee n most cities a quorum is three or more council or committee members. It's easy to imagine situations in which a quorum might gather- coffee at the local cafe, pre- or post-meeting discussions, a wedding reception or community celebration are all common places in which one or mor council members might be present. Such a meeting would create an open meeting conce if a group discussed city business. Although not an obvious meeting, serial meetings also create an open meeting concern if city business was discussed by a quorum. To understand how a serial meeting occurs, imagine that council member A talks to council member B about a city issue, B talks to council member C about that issue, and C talks to A. Serial meetings also can occur through written correspondence, or telephone conference calls. Any of these scenarios could give rise to an open meeting law violation. Violating the law carries with it penalties including personal liability for up to $300 per occurrence and forfeiture of office for officials who intentionally violate the law three times. Reasonable costs and attorney fees also can be awarded if the court finds specific intent to violate the law. Electronic Communications and the Open Meeting Law The Minnesota Open Meeting Law has a number of tricky aspects, not the least of which results from increasing reliance on a-mail and other electronic communication between council or committee members. This material is provitletl as general information and is not a substitute for legal advice. Consult your attorney for aWice concerning specllic Situations. LEAGUE OF MINNESOTA CITIES ,4s uNrvraslrv we. west PHUN E: (GSU 2$l-t2Oe rNC (GSU 281-1298 1NSURANCETRUST ST PAUL MNSSE012U44 1'OLLFRlE($00)925-1121 WEP:WWWLMCO0.G Electronic communication makes a serial meeting easier by allowing council or committee members to forward messages from one person to the next, to respond to one another via blog comments, or to chat via social media vehicles such as Facebook, MySpace or Twitter. Imagine one council member e-mailing another to suggest the pros and cons of a particular city decision. The recipient forwards the a-mail to another council member, along with his or her own comments and interpretations. Even if the last council member to receive the a-mail doesn't reply to the originator or the council member who forwarded the message, the three members have still discussed city business outside a public forum. A similar situation could occur if council members respond to one another's blog, comment about city business on Facebook, or communicate via amicro-blog such as Twitter. A violation could be found where serial electronic communications are used to reach a decision. Many cities are moving toward electronic meeting packets for councils and committees, often sent via a-mail attachments. This sort of one-way distribution of information is fine in terms of the Minnesota Ooen Meetin¢ Law, remembering that anv materials relatint; to t-I a asen a it~a must to City officials should start to get concerned, though, when one or more council members use the "reply to all" feature in a-mail to respond to the content of the meeting materials, or otherwise begin a discussion by a-mail about the packet, or discuss agenda items on social media sites. This can begin to look a lot like non-public discussion of city business. Suggestions One suggestion is that council members never communicate to one-another using electronic means, but instead treat electronic me ~a suc a - y as a way to receive information from the city clerk or administrator. If a council member has information to share electronically with the rest of the group, he or she might send it to the clerk and ask for it to be distributed from the clerk to everyone else (electronically or in paper form). Using the clerk as the cleazinghouse for information distribution is probably a safer alternative than having council members communicate directly, although it doesn't complete eliminate concerns about violating the open meeting law. Even t is c eanng ouse c n cou provide opportunity for three or more council members to exchange opinions about city Read more about risks related to electronic communications between council members, and social media and cities, from the League: Open Meeting Law Defense Coverage Developing o Computer Use Policv Social Media and Cities: business, so it s important that the city clerk be aware of and watch for possible issues. Finally, this model would still present problems in Standard Plan cities, where the clerk is also a member of the council. If council members are engaged in direct electronic discussions, it's probably best to limit it to only two members. A "no fo ardin and no copying" rule might be a good way to make sure the Minnesota Open Meeting Law isn't unintentiona y violated through electronic conversation. Finally, be careful when council members participate in a listserv, chatroom, forums and social media. Because these groups may include a quorum of your council, one council member's comments will be viewed by other members. If the topic has to do with city business and other council members reply, it could prove problematic under the Minnesota Open Meeting Law. Again, the city might consider a "no reply" sort of rule when it comes to these resources, or perhaps have council members send ideas for postings or responses to the city clerk or administrator to manage. Remember, too, that official city committees are subject to [he same open meeting requirements and should be similarly educated about correct electronic use. Regardless of precautions, there may be times when council members find themselves accused of violating the Minnesota Open Meeting Law, perhaps having unintentionally engaged in one of these sorts of conversations. One way to diffuse some concern is to immediately release copies of all electronic correspondence to anyone who wants to see it. While this doesn't negate the possible violation, it shows good faith and lack of specific intent to violate the law. Draft guidelines for electronic communications between council members Cities might decide to develop policies clarifying appropriate or preferred a-mail and electronic communications use by and between council members. Even if a city doesn't formally adopt a policy, the guidelines here might be helpful for any elected official or city board member to follow. The purpose of these drafr guidelines is to suggest how members of city councils and other city committees might communicate via email and electronic means. A city should review these draft guidelines along with its normal operating procedures, consult with the city attorney and determine the best course of action. Tom Grundhoefer /Greg Van Wormer 09/09 Guidelines for Electronic Communications between Council Members in the City of These guidelines apply to all members of the city council and all members of council and city committees, commissions, sub-committees, etc. in the City of For purposes of these guidelines, reference to council members includes members of all other city committees and groups subject to the Open Meeting Law. Reference to the council shall include all such groups and meetings. For purposes of these guidelines, "electronic means" means email, instant messaging, chatrooms, social media, microblogs and related electronic conversation. For purposes of these guidelines, "city clerk" means the city clerk, manager, administrator or his / her designee. These guidelines apply regardless of whether the council member is using achy-provided email address and account, his/her personal email address or account, or one provided by his/her employer; and to all social media accounts to which a council member posts. Meeting materials Electronic communication of meeting materials should generally be conducted in a one-way communication from the city clerk to the council. Council members may receive agenda materials, background information, and other meeting materials via email attachment or other electronic means (such as file sharing) from the city clerk. If a council member has questions or comments about materials received, s/he should inquire via electronic means directly back to the city clerk. A council member should not copy other committee members on his/her inquiry. If the clarification is one of value to other council members, the city clerk may send follow-up materials or information to the council. Materials relating to agenda items of a meeting must also be made available to the public at the meeting. Communication during council meetings Council members should not communicate with one another via electronic means during a public meeting. • Council members should not communicate with any member of city staff via electronic means during a public meeting. Council members should not communicate with the public via electronic means during a public meeting. Communication outside of council meetings • Council members should generally act with caution when using electronic means to communicate with one another, being mindful of the Minnesota Open Meeting Law. • If a council member wishes to share information with other members, s/he should do so through the city clerk. The council member may request the city clerk distribute materials to others. The communication should not invite response to or discussion between any council members, including replies to the person making the distribution request. This should be considered a method for providing one-way information to other members of the council. Again remember that materials relating to agenda items for city business must be provided to the public at the meeting. • If a council member wishes to address only one other member through electronic means on any topic related to city business, s/he can do so directly, but should be mindful of the following: o One-to-one communication is ideal. o The recipient of an electronic message or inquiry should reoly only to the sender, should not copy others on the reply and should not forward the original-' communication to other council members. o The sender of an electronic message should not forward or copy the recipient's reply to any other council member. o Neither the recipient or sender should publish such correspondence on any blogs or other social media site unless it is part of an official communication of the whole of the Council, and part of the city-managed electronic communication strategy. • If a council member receives an electronic communication from any source related to city business and distributed to multiple council members (i.e. an email sent to the entire council from a member of the public; or an email sent to three council members from a local business), s/he should reply only to the sender. The reply should not be copied to all on the original distribution or forwarded to any of er council member. • If a council member receives listserv distributions, electronic newsletters, or participates in electronic discussion forums, chatrooms, or on Facebook, Twitter or blogs where other council members are also likely to participate, the council member should not reply to any distribution or comment so that the reply is copied to the entire distribution group, or any part of the group that might include other council members. The council member should instead respond only to the sender of any message or inquiry. Classification and Retention of electronlc communications • Regardless of whether electronic communication by a council member is taking place on a city-provided computer, home computer or other computer system, classification of information as public, private or other is governed by the Minnesota Government Data Practices Act (Minn. Stat. Chapt. 13) and should be treated accordingly. • Council members should retain electronic communications in keeping with city policies and procedures, whether such communication takes place on achy-provided computer, home computer or other computer system. o® j.,EAGUE or CONNECTING & INNOVATING MINNESOTA SINCE 1913 CITIES RISK MANAGEMENT INFORMATION MINNESOTA GOVERNMENT DATA PRACTICES ACT: YOU WANT WHAT? WHEN? Overview The Minnesota Government Data Practices Act, Minn. Stat. Hi hli h ch. 13, attempts to balance the public's right to information, individual's right to privacy, and government's need to The general presumption of the function responsibly. There is nothing in the Act requiring Act is simple: government data any city to hand over requested information on the spot. are public unless otherwise While a great deal of the information at city hall is public classified by state or federal law. and must be released when requested, a city is entitled to Government data that is establish and follow a process for evaluating and complying collected, created, stored, or with data requests. Simply put, it is much better to take a maintained by a city are public conservative approach when considering a data request, and are accessible for both even if that means the data is not released immediately. Ln inspection and copying. the long run, a delay, during which a city confirms the data being requested and ensures that release is permitted under the Act, may prevent a city from being sued for sharing data that should not have been released. The Act requires government entities, including cities, to identify the types of data they maintain and determine how each type of data is classified. A city must develop a public document identifying these data categories and classifications for data on individuals. (The Act does not require such a document for data that is not on individuals.). This public document must contain the name, title, and address of the city's "Responsible Authority" and copies of any forms used to collect private data on individuals (i.e., Tennessen Warning). This document must be updated annually. While the Act does not require that a data request be in written form, a city may require that data requests be submitted in writing and may require the use of a form designed for this purpose. Cities must respond to data requests appropriately and promptly. More than anything else, what is appropriate and prompt depends upon the scope of the request, and may vary depending upon the size and complexity of a city, the type and/or quantity of data requested, the clarity of the data request, and the number of staff available to respond to the request. This material Is provitletl as general information antl is not a whstaute for legal advice. Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES IdSVN(VERSITYAVE.WEST PNONE(6Si)28I-1200 Enx:(65t)281-1298 INSURANCE TRUST ST PAUL. MNSSIU3-2UM TOLLFAEE:(8OO)92S-11ZZ WCB:WWWLMQORG Meeting the requirements of the Act can be difficult because of the demands placed on city staff to know intricate details that may differ depending on the data being requested. Finding guidance on how to apply the Act is not always as easy as simply consulting the statutes. In addition to the statutes, the Commissioner of Administration prepares educational materials and model policies. The Commissioner also has authority to issue advisory opinions regarding how the Act should be applied in certain situations. On occasion, Minnesota appellate courts are called upon to interpret provisions of the Act. These court decisions may disagree with the Commissioner's opinions. Appellate court decisions take precedence over Commissioner's opinions. Required Officials A city is required to have two officers to administer the responsibilities set forth in the Act. The required officers are the Responsible Authority and the Compliance Officer. According to the Act, requests for data are to be directed to the Responsible Authority. The Responsible Authority then makes the determination to provide or deny access to the data requested. If a person believes he/she has been wrongfully denied access to data, he/she can work with the Compliance Officer. A different outcome seems unlikely if the Compliance Officer is the same person who previously denied access to the requested data in the role of the Responsible Authority. While the concept of having both a Responsible Authority and a Compliance Officer may not seem practical in a smaller city, cities must have both to meet the requirements of the Act. Definition The Responsible Authority is an individual designated by the city council to be responsible for collection, use, and dissemination of a ny set of data. The Compliance Officer is an individual designated by the Responsible Authority to handle questions or issues with data access. The Responsible Authority may designate one or more persons to perform the required duties of this position. In larger cities, the Responsible Authority is usually the chief administrator. That person in turn might designate a representative in each department to handle data practices requests for information in those departments. In smaller cities, the city clerk is often the Responsible Authority and handles all data requests personally. The Act requires that each Responsible Authority establish procedures to ensure requests are received and complied with in an appropriate and prompt manner. These procedures must be in written form. Changes in personnel or circumstances that might impact public access to government data are to be incorporated by August 1 of each year. A copy of these procedures must be available to the public free of charge or a copy must be posted in a conspicuous place that is easily accessible to the public. The Compliance Officer can be the same person as the Responsible Authority. Forms of Data Government data are more than official city records. For example, calendars with dates, times and locations of meetings, as well as notes to en a m tngs, are government a a. s government ata, t is in ormation ~s_su~b'ec~t to - public access under the Act. A calendar that is a~ mix o~ persona an pu tc to orm tion creates the need for a city to separate the public from private before releasing requested information. Electronic forms of government data present special challenges in meeting the requirements of the Act. One such challenge is the permanency of computer files; when something is deleted on the screen, it is generally still recoverable. This is significant in the context of a-mail. Em Ip oyees~ften use a-mail in the same way as verbal commumcatton not ~e~tzmgTa a-mat eaves a record that is tkely accessible un ct. Definition Government data are defined as all data collected, created, received, maintained, or disseminated by a city regardless of physical form, storage media, or conditions of use. Besides paper documents, government data includes audio and videotapes, computer disks, e- mails, and even computer hard drives. Mental impressions are not government data. It is important to remember the Act requires that all forms of government data be accessible-this includes electronic data. This requirement should be considered both when determining how best to store government data (regardless of its form) and when separating data in response to a request. Charges for Information A city cannot charge a fee for inspection of data. The Act requires that government data be kept in a manner that makes it easily accessible for convenient use. So, no matter how much time and effort is needed to find and retrieve requested data, a city may not charge a fee if a person only requests to inspect data. Inspection includes viewing the data, but does not include a city printing copies of the data unless printing a copy is the only method by which the data could be inspected. SomethinE to Think About When a person requests copies or electronic transmittal of public govemment data, and the requester is not the subject ofthe data, a city may require the requester to pay a fee. Suggested guidelines for calculating such a fee are provided below. Regardless of which method is used, a city may not charge a fee for separating public data from private data Fee Calculation Method I If 100 or fewer pages of black and white, letter or legal size paper copies are requested, a city may charge aper-page fee of not more than 25 cents for each page copied (50 cents for atwo-sided copy). A city may charge only the per-page fee and cannot require the requester to pay any other costs associated with providing the copies. A city is not permitted to divide a single request into multiple requests for copies of fewer than 100 pages in order to avoid charging a fee based on the actual cost of providing copies. Fee Calculation Method II In all other circumstances, including requests to provide data via facsimile, a city may require the requester to pay the actual costs of searching for and retrieving the data, and for making, certifying, compiling, and electronically transmitting the data or copies of the data. A city may not charge a minimum fee. Costs that may be included as long as they are reasonable: Learn More further guidance about this fee calculation method is on the IPAD website at: www.ioad.state.mn.us • Staff time required to: o Retrieve documents, or to remove staples or paper clips. o Sort and label documents, only if necessary to identify the data to be copied. o Take documents to copier for copying, copy documents. Note: a city may not assess a fee for labor costs that exceed those of the lowest paid employee who could complete the task(s) performed. • Materials (paper, copier ink, staples, magnetic tapes, video or audio cassettes, etc.) • Special costs associated with making copies from computerized data. • Mailing costs. • Vehicle costs (directly involved in transporting data to another facility when necessazy to provide copies). Costs that may not be included: • Staff time required to: o Separate public from private data. o Open a data request that was mailed. o Sort, label, or review data if not necessary to identify the data to be copied. o Return documents to storage. o Provide information about the data to [he requester (i.e., explain content and meaning of data). o Prepare data for mailing, prepare cover letter, fax sheet of invoice for copies. o Prepare cover letter, fax sheet, or invoice for copies. o Credit payment and perform other associated accounting functions. • Purchase, rental, maintenance, and/or depreciation of copier. • Normal operating expenses of computer/copier, including electricity used, and machine wear/tear. • The entire cost ofoperating amulti-tasked computer for a measured unit of time, when fulfilling a request for copies was only one of the tasks perfortrted during that unit of time. • Administrative costs that are not related to copying or records storage. • Sales tax. Personnel Data The presumption under the Act regarding personnel data is the opposite of the general presumption of the Act: personnel information is presumed to be private data unless otherwise noted in the Act. Definition Personnel data are information about an individual collected because the person has or had an employment relationship or applied for a position with the city. Tennessen Warning When a city asks a person to provide private data about himself or herself, that person must be informed of: • The purpose and intended use of the requested data. • Whether he/she may refuse or is legally required to supply the requested data. • Any known consequence of supplying or refusing to supply private or confidential data. • The identity of other persons or entities authorized to receive the data. Access to Personnel Data in General Private personnel data can only be accessed by the data subject and by government officials whose duties reasonably require access. There is no formal definition of "work duties that reasonably require access" tc private personnel data. This determination depends on the facts of each situation. It is the role of the Responsible Authority to decide if an individual's work duties reasonably require access to such data and to establish written procedures that ensure access is gained only by those entitled. A common issue occurs, especially in smaller cities, when a council member requests private personnel data on a city HIEhIIEht employee. Facts of the situation at hand must be evaluated City council members do not have by the Responsible Authority who then decides whether or an automatic right to review not access to the data should be granted. This scenario private personnel data. may place the Responsible Authority, who is often the city clerk, in a difficult position when access should be denied under the Act. It is a good idea to develop a written policy that specifies when council members can have access to private personnel data. Access to Personnel Data by Data Subject A city may limit access by a data subject to all private data (personnel data or other) to once every six months. The data subject is entitled to more frequent access if additional data are collected or created or if there is a dispute about data completeness or accuracy. It is up to each city or Responsible Authority to decide whether they are going to enforce this limitation. ]f such a restriction is to be enforced, the practice should be in writing and a city must apply it uniformly and not selectively. If a data subject requests access to data about themselves, the Responsible Authority must respond to the request immediately or within ten business days if immediate compliance is not possible. If the subject requested the data within the previous six months, it is acceptable to respond by informing the data subject that the city limits access to private data to once every six months pursuant to the Act and therefore the data cannot be released at this time. Complaints and Discipline The existence and status of any complaint about a city employee are public. In general, the identity of the complainant is also public unless the complainant is another employee. Hi hli ht When the complainant is another employee, any data collected would be considered personnel data and, as noted earlier, the presumption is that personnel data are private data unless covered by an exception. On occasion, a complaint will result in a city taking disciplinary action against an employee. Prior to what is called a "final disposition" only the existence and status of the complaint are public. Once a final disposition occurs, then the disciplinary action is public along with specific reasons for the action and data documenting the basis for the action. It is important to note that if no disciplinary action is taken, no final disposition occurs. When this happens, only the existence and status of the complaint are public. When discipline is imposed, the key is determining when the disposition is final. For anon-union employee, final disposition occurs when a city makes its final decision about discipline. For a union employee, if arbitration under a union contract is a possibility, final disposition occurs at the end of the arbitration proceedings or at the expiration of the time period during which arbitration may be requested. Other Issues to Note While there are probably as many potential data practices issues and questions as there are Minnesota cities, some issues tend to come up repeatedly. Some of the more common data practices issues and considerations are noted in the following sections. Elected Officials The Act addresses data on applicants for election or appointment separate from personnel data. However, the Responsible Authority may determine that elected and appointed officials are to be treated as employees for purposes of applying the Act. In that case, both the personnel data noted in the Act and the Following are considered public data on applicants for election or appointment: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience. Law Enforcement Data Law enforcement agencies are responsible for a tremendous amount of data. Both because of the frequency with which law enforcement data are requested and because of the potentially sensitive nature of the data, it is essential to have a well thought-out policy documenting procedures for requesting and releasing law enforcement data. The following describes the classification of commonly requested law enforcement data: "Request for service data" are collected or created when a member of the public requests law enforcement services. Request for service data are public data and include data on the nature of the request or activity complained of, the name and address of the person making the request, the time and date of the request, and the response initiated by the law enforcement agency. The audio recording of a 91 I call made to request service from a law enforcement, fire, or medical agency is private data with respect to the individual making the call. However, a written transcript of the audio tape is public, unless it reveals the identity of an individual who is entitled to privacy. "Response or incident data" are collected or created by a law enforcement agency documenting the agency's response to a request for service or describing actions taken by the agency on its own initiative. Response or incident data are public data and include the date, time, and place of the action, a factual reconstruction of events associated with the action, as well as the names and addresses of witnesses, and the names and addresses of victims. Investigative data collected or created by law enforcement to prepare a case are confidential--even the subject of the data is denied access-while the investigation is active. Inactive investigative data are public unless release of the data would jeopardize another active investigation or would reveal the identity of an individual who is entitled to privacy. Photos that are part of an inactive investigation, but are clearly offensive to common sensibilities are private, However, the existence of such photos must be disclosed. Parks and Recreation Data Something to Think About A law enforcement agency is entitled to withhold otherwise public information if it determines that revealing the identity would threaten an individual's personal safety. law enforcement agencies are required to establish procedures for making the determination as to when it is necessary to protect the identity of an individual. Data used for the purpose of enrolling individuals in a city's recreational and other social programs are private. Specifically, the name, address, telephone number, and other data that identifies an individua] are private. So are any data describing the health, medical condition(s), family relationships, living arrangements, and/or opinions as to the emotional makeup or behavior of an individual. Utility Data Data about customers of a municipal utility are public with the exception of electric utility data. If Social Security Numbers are collected in connection with municipal utility service, they must be edited from data provided to a requester. Electric utility data have an exception that makes them private data that may be released to law enforcement, a school for the purposes of assembling pupil census data, and to a public child support authority. Requests for information on new utility customers should be honored by any municipal utility other than an electric utility.. Data revealing the identity of people delinquent in their utility bills are also public, again with the exception of electric utility data. It is a city's responsibility to ensure that the information being released is accurate. Releasing information that a customer is delinquent on his/her utility bill when the bill is in fact current could be considered defamatory. Cities should develop a practice ofdouble-checking the accuracy of information before responding to such requests. Property Complaints The identity of a person making a complaint about a violation of law or ordinance concerning the use of real property is confidential data. This classification is used to shield the identity of an individual(s) who complains to a government agency from anyone who might seek retribution against the complainant. The Commissioner has issued opinions that this part of the Act not only covers the physical use of property, but noise and odors, too. Complaints against both city property and private property are included. The general presumption of the Minnesota Government Data Practices Act, Minn. Stat. ch. 13, is simple, but meeting the requirements can be difficult. However, following the items described in this memo can assist you in meeting these requirements. Tracie Chamberlin OS/10 B. Data practices nti^^ s,at ch. 1~ Cities are often asked to release information. In doing so, every city in Minnesota must comply with the Minnesota Government Data Practices Act (MGDPA). Government data means all data collected, created, received, maintained, or disseminated by the city regardless of its physical form, storage media, or conditions of use. This would include data one receives or creates in the capacity of mayor. The Act presumes that government data are public and are accessible by the public for inspection and copying unless there is a federal law, state statute, or temporary classification of data that provides differently. boon. Sin. ti 13.02, sera If a city receives a request for government data, it is the role of the 1 ~ city-appointed "responsible authority" or their designee to respond. "n"" st°' g t s os, sobd That person is responsible for the collection, use, and dissemination of any governmental data as well as other obligations of mrnn su,. g Is o5, sel,d ,; administering the MGDPA, including preparing a public document containing procedures that the official will use to administer the MGDPA. The responsible authority must appoint or also act as a "compliance official." The compliance official responds to questions or concerns from persons who are attempting to access data or enforce their rights. The MGDPA is one of the most complex laws that a city has to comply with. Accordingly, all elected officials should consult with the city's responsible authority before releasing any city data. "rnn smt s u.or.. Cities may request advisory opinions from the commissioner of the To request an advisory Department of Administration on any question concerning public opinion, write to the access to government data, rights of subjects of data, or classification (. omm iSS'i"nef nl Administration. ch, of data. Advisory opinions are not binding, but a court must give I^a,r~nntion rer=> deference to the opinion in a proceeding that involves the data in Analysis nivision, 201 Aaminisvation au;laing, dispute. Cities that take action in conformance with the opinion will so snerbume Ave. st. not be liable for compensatory or exemplary damages, awazds of Foul, Minnesota sstss, attorney fees, or penalties. Cities interested in requesting an opinion FAX', (651) 205219. can contact the Department of Administration, Information Policy Analysis Division. The Department of Administration maintains an iFAn opinions. index to advisory opinions on its website. "tin,,. stet. ; 13 ns. 1t's important to remember, there are significom civil penalties for uw-~,.~: r~..r~„oh willfully releasing private and confidential data and for willfully N'valringam (`^vrrm.tioh., ^ refusing to release public data. In addition, a city that violates any _ ~.w.zd o 1~-lion. e; zoo21. provision of the MGDPA is liable for any damage as a result of the violation. The person damaged may bring an action against the city to cover any damages, plus costs and reasonable attorney fees. Mi^naw M:wr. 1 a n~,«;ner MmRR )20?.U3tN), suhp. 2 See Chapter 4, Section I-B- I. Minn. Slat 913(iU 1. whd IPAD 97-6021 fan 1 i, 1997)', and 9?-U I4 (Apr. 1. 1997). M1finn. Slat ~ I1}9}, Minn Srat § I}U.OS_ Mayors may wonder what right of access they themselves have to data that isn't public. Whether an elected official or staff, the law says that access is limited to individuals "whose work assignments reasonably require access." Whether the mayor falls into that legal description is a question for each city to decide with the help of the city attomey. For this reason, mayors shouldn't be surprised if they don't get a key to the city offices just because the mayor of another city does. And of course, there's always a difference between whether one can access private or confidential data and whether one should. Since the data a person collects, creates, receives, maintains, or disseminates in the capacity of mayor is government data, a mayor may wish to be careful about where that data is created, collected, etc. Government data can easily, even accidentally, be created at home that is both public and subject to a retention schedule. Also, mayors may wish to take care in what they say in their official capacity within a-mails and even text messages. The MGDPA states that correspondence between individuals and elected officials is private-though either party may make it public. At the same time, correspondence between elected officials and employees is public un ess t-T t'ns informations ecificall c assf le as non- u Ic. 1s even applies to the city administrator's s a us reports to the city council. The attomey-client privilege, however, would apply to documents created for the purpose of giving legal advice, such as a letter between the city attomey and a city official. The Open Meeting Law prohibits the closing of a meeting solely to discuss private data (except in limited circumstances clearly listed in the statute), and provides that private data may be discussed openly at any public meeting without fear of liability or penalty as long as the release of the data is reasonably necessary to conduct the business the data relates to. If private data needs to be discussed at a public meeting, it is recommended that the city try to protect the information by assigning numbers, letters, or similar designations to it, and that those designations be used instead of the actual data. Discussing private data in a closed meeting does not change the fact that it is private. Therefore, even though an open meeting might have just occurred in which private data was discussed, that data shouldn't be discussed with family, friends, or the media as if it is now public information. While inmost cases private data may be discussed in an open meeting without fear of liability, mayors should remember the situations mentioned in [he previous section in which the Open Meeting Law requires a meeting to be closed. ~" MiMnoo Ma}on I S Asa~o,ian«: