data practices & records retention

Data Practices &

Records Retention

Scott M. KellyLMC Staff AttorneyOctober 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 ResponsibilitiesAll Government Units

Must: Secure & provide access

to: Government data

Create, retain & manage: Official records

Data and Records

Government DataMinn. 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 DataData 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

OfficialsSpecific employees responsible for carrying out the requirements of the Act:

Responsible Authority Designee(s) Data Practice Compliance

Officer

Request for InformationCity response to request will vary if request is by:

A Member of the Public

The Data Subject

Member of the Public1) 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 Subject1) 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 RecordsMinnesota Statute §

15.17 Must create records

necessary for a full and accurate “knowledge of official activities”

Paper, E-mail, 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 PreservationMinnesota 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 RecordsPresent 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”

Recommendations1) 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 1Person 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 2Written request for Data:

“I want Joint Powers.”

Response?

Clear & UnderstandableMinn. Stat. 13.05, subd. 12A 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 3In Writing:

“I would like all of the 2008 Planning and Zoning Committee and 2008 City Council Meeting Minutes.”

Any Important Information Lacking?

Inspection or CopiesDepends 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 4Resident 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 AuthorityResponsible 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 SafeguardsMinn. Stat. 13.05, 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 6Written 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 IdentityIf 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 3rd 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 & RetentionPractical 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 8City 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” DataMinn. 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 9Written 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 RecordsMinn. Stat. 13.03, 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 10In 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 RequestsNot 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 11A 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 AuthorityConsult 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 12Written 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 WestSt. Paul, MN 55103-2044(800) 925-1122 - (651) 281-1200www.lmc.org

Request opinion from the department of administration (IPAD)

Request opinion from the attorney general

Scott M. KellyStaff Attorney

League of Minnesota Cities(651) 281-1224skelly@lmc.org