Date: December 2015
MCIT often assists members with risk management for Open Meeting Law (OML) and Minnesota Government Data Practices Act (MGDPA) compliance. This is the second of an occasional series highlighting some of the questions about recording board meetings posed to MCIT. As always, MCIT recommends that members contact their legal counsel regarding specific situations.
Q: Must the board electronically record its closed meetings?
A: The Minnesota Open Meeting Law requires public entity boards to record electronically all closed meetings, except those closed under the attorney-client privilege (Minn. Stat. § 13.05, subd. 1(d)).
There is no corresponding legal requirement to record electronically those board meetings that are open to the public. The decision to record open meetings is a policy decision to be made by the public entity’s governing board after weighing several legal and practical considerations.
Q: How long should electronic recordings of closed meetings be kept? Who can have access to the closed meeting recordings?
A: Electronic recordings of closed meetings must be preserved for at least three years after the date of the meeting, unless otherwise provided by law or the government entity’s records retention schedule. Whether some or all of the closed meeting recordings can be released upon request will depend on how the data on the recording is classified under the Minnesota Government Data Practices Act (MGDPA) and any other specific requirements found in the Open Meeting Law or other law.
For example, when a meeting is closed to determine the asking price for real or personal property to be sold by the government entity, the recording must be preserved for eight years after the date of the meeting. The recording is only available to the public after all real or personal property discussed at that meeting has been purchased or sold, or the governing body has abandoned the purchase or sale (Minn. Stat. § 13.01, subd. 3(c)). Notwithstanding this, to the extent that this recording may contain data that is otherwise classified as not public under the Minnesota Government Data Practices Act, the recording may need to be redacted or withheld.
Q: The board properly closed a meeting to consider preliminary allegations of misconduct made against an employee. The employee has requested a copy of the electronic recording from the closed meeting. Is the board required to give the employee access to the recording?
A: Meetings closed for preliminary allegations or charges against an individual must be electronically recorded. Whether some or all of the recording can be released upon request will depend on how the data is classified under the Minnesota Government Data Practices Act, and who is making the request.
As a first step, the board or responsible authority should contact legal counsel for advice on how best to proceed given the particular circumstances at hand.
At the outset, the electronic recording is likely classified as personnel data, under Section 13.43 of the MGDPA. “Personnel data” means government data on individuals maintained because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a government entity.
Personnel data is generally classified as private unless specifically delineated in statute. Although the existence and status of any complaints or charges against the employee is public under Minnesota Statutes Section 13.43, details of any complaints or charges generally remain private. However, because private data is accessible to the individual subject of that data, in some cases, the board may be required to provide access to the employee who is the subject of the data.
Prior to providing this access, the board must determine whether the electronic recording contains data about individuals other than the requesting employee. Although the employee might be allowed to have access to private data on him- or herself, he or she may not have the right to receive private or confidential data about others.
Furthermore, given that the meeting in this scenario was closed to consider allegations of misconduct made against an employee, the electronic recording in some circumstances may be additionally classified as civil investigative data under Minnesota Statutes Section 13.39. Civil investigative data is collected by a government entity as part of an active investigation undertaken for the purpose of commencement, defense or retained in anticipation of a pending civil legal action, as defined by statute. A pending civil legal action includes judicial, administrative or arbitration proceedings. Only chief attorney acting for the government entity can determine whether a civil legal action is pending.
Active civil investigative data is classified as confidential or protected nonpublic data, meaning that the subject of the data is not entitled to access the data. A complainant, however, does have the right to access a statement that he or she provided to the public entity.
Again, because this can be a complex analysis, responsible authorities and government entities should consult with legal counsel prior to releasing electronic recordings of closed meetings that may contain not public data.
Q: The board clerk records open board meetings solely as a convenience to assist in writing the board minutes. The recordings are not the official record of the meeting and are deleted after the minutes are drafted. The board has received a request under the Minnesota Government Data Practices Act for the clerk’s recordings. Can the government entity deny the requestor access to the recording?
A: The Minnesota Government Data Practices Act defines “government data” as “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (Minn. Stat. § 13.02, subd. 7.) The MGDPA establishes a presumption that government data are publicly accessible, unless access is prohibited either by law or by a temporary data classification. A government entity must provide a requesting party access to public data.
Because the clerk made the recording in the course and scope of his or her duties and for a purpose related to the operations of government, the recording is likely government data. The limited reason for which the recording was made does not change the recording’s status as government data (see Minn. Dept. of Admin. Op. 07-006 (ipad.state.mn.us/opinions/2007/07006.html); Op. 04-018 (ipad.state.mn.us/opinions/2004/04018.html)).
Electronic recordings of open board meetings are likely public data. As such, if the recordings exist at the time of the request, the government entity may be obligated to produce them in response to the Minnesota Government Data Practices Act request. That said, the government entity should consult with its legal counsel if there are any questions regarding the classification of the electronic recordings.
Keep in Mind
The Minnesota Government Data Practices Act and the Open Meeting Law can be complex. The answers to many MGDPA and Open Meeting Law questions are highly dependent on the facts at hand. As such, MCIT encourages members to consult their legal counsel for advice based upon the specific facts of their situation.