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HomeMy WebLinkAbout01-29-1998 Articles Private Data in the Civilian Review By Ann E. Walther The Minneapolis Civilian Police Review investigators,*- who investigate the com- conditions of use.'s One classification of Authority(CRA)wasthefirstagencyofite plaints, and an executive director, who government data is "personnel data,~ de- type created in the state of Minnesota. It makes the final determination on the dis- fined as was created to improve citizen-police rela- position of complaints and prosecutes data on individuals collected because tions and to establish a g~eater trust in the cases heard by the board. The investiga- the individual is or was an employee oversight ofpotice conduct. However, it has tors are prohibited from being, or ever hay- of or an applicant for employment by, remained somewhat controversial, in part lng been, a sworn Minneapolis police performs serviceson a voluntary basis because the CPA's actions are largely con- officer.3 The executive director must be an for, or acts as an independent contrac- fidential, and therefore largely concealed attorney licensed to practice in the state of tor with a state agency, statewide sys- from the public. Only summary data, exis- Minnesota.4 tern or political subdivision or is a tence and status of complaints, and data The board consists of seven civilian member of or an applicant for an advi- supporting discipline after final disposi- members, four who are appointed by the sory board or commissionfi tions are public. All other data is private. City Council, and three who are appointed This article will explain the reasons for the by the mayor, subject to the approval ofthe Since the CPA collects data regarding corn- confidentiality of the process. Council.5 Board members cannot be sworn plaints made against Minneapolis police members of the Minneapolis police force, officers for alleged misconduct occurring in Overview of the CRA They are not required to have any knowl- the course of their employment with the The CPA was established by ordinance edge of police procedures, nor are they re- city of Minneapolis, all data collected by it in 1990.[ The scope of the CRA's authority quired to attend police training or is "personnel data." is set forth in Minneapolis Ordinance ride-alongs. By contrast, theSt. Paulordi- Governmentdataonindividuals, includ- § 172.20, which provides that the CRA nance creating a civilian review board re- lng personnel data, is classified as either 'shall receive complaints that allege mis- quires that two members of the beard be public, private, or confidential,l° Public conduct by an individual police officer or current members of the St. Paul police data on individuals is accessible to the officers, including, but not limited to, the department. It also requires each board public,tt Private data on individuals is as- following: member to participate in a training pro- sessible only to the subject of the data? (a) Use of excessive force; gram that includes training in police work Confidential data on individuals is acces- and ride-alongs with an officer on actual sible to neither the public nor the subject th) Inappropriate language or patrol dutiesfi of the data.t3 attitude; Minn. Stat. § 13.43 defines public per- ~ c ~ Harassment; The Data Practices Act and the CRA sonnel data as including , d* Discrimination in the provision of police serrates or other discrimina- Process the existence and status of any corn- tory conduct on the basis of race, The Minnesota Government Data Prac- plaints or charges against the color, creed, religion, ancestry, na- rices Act tMinn, ch. 13)lhereinafter re- ployee, whether or not the complaint tional origin, sex. affectional pref- ferred to as the "act') "regulates the or charge resulted in a disciplinary action; the final disposition of any dis- erence or age: collection, creation, storage, maintenance, ~ e~ Theft; dissemination, and access to government ciplinary action together with the spe- data in state agencies, statewide systems, cific reasons for the action and data r fl Failure to provide adequate or and political subdivisions? Government documenting the basis of the action, timely police protection." data is defined as Wall data collected, crc- excluding data that would identify The CRA consists of a staff, which pro- ated, received, maintained or dissemin- confidential sources who are employ- cesses the complaints, and a board, which ated by any state agency, political ecs of the public bedy.t4 acts as fact finder in cases proceeding to subdivision, or statewide system regard- Any personnel data not specifically desig- hearing. The staff includes three civilian less of its physical form, storage media or hated as public is classified as 'private?s 26 The Hennepin Lawyer cordings. [n the case ol' arbitration the CRA. and it must prove a violation of pearmg before the proceedings arising under collective the ordinance by' "clear and con~"tncing er- .'~[inneapo[is Civilian bargaining agreements, a final dispo- tdence. - Witnesses are sequestered and Police Review Authority sition occurs at the conclusion of the cannot stay in the hearing following their failure of the employee to elect arbitra- bring an attorney, who may be present which is public is that on a sustained eom- tion within the time provided by the during their testimony.:'-' The private at- plaint where discipline has been imposed. collective bargaining agreement, t~ torney ma)' counsel the client, but may not Since the vast majority of complaints is not participate in the hearing process.:a sustained, the majority of data collected by When a complaint is brought to the CRA. PO'tot the hearing has concluded, the the CRA is inaccessible to the public. While it is mvestigated by the staff. Civilian paneldeliberates. [t may make one ofthree this may be frustrating, it is the intent of witnesses are contacted and asked to give findings: I I~ exonerated, the panel finds the act. The Minnesota Supreme Court statements. Officers are compelled to give either the facts alleged in the complaint held in Anaandale Adcocute v. City o£An- statements under penalty of discipline, are true but do not constitute misconduct nnndale that "the legislature's obvious in- They are given a Oarrity warning, I? which by the officer, or the facts alleged in the tent [is] to give the personnel data of public provides that any statement given by the complaint are not true; (2) not sustained, employees substantial privacy protec- majority of employee disciplinary matters The only data collected by the CRA which is public is that handled internally involve job-related and non-criminal misconduct. Therefore, re- on a sustained complaint where discipline has been moral of privacy protections is not only imposed, unnecessary, but is contrary to legislative intent.TM Don Gemberling, an expert on the act. notes that "[tlhe expansion of pub- lic access to government information nec- officer cannot be used against him or her insufficient evidence exists to sustain the essarily jeopardizes the protection from a a subsequent criminal proceeding, complaint;or 3>sustamed If the finding disclosure of sensitive, personal informa- During the investigation process, the is, either exonerated or not sustained, the tion on individuals.'~-s data collected by the CRA is considered data collected regarding the complaint re- Public employees, particularly police of- "investigative data" under Minn. Stat. mains private data forever, because no dis- fleers due to their statutory right to use § 13.39, and is classified as "confiden- cipline was imposed, force, are at risk from unsubstantiated, rial.''ts After the investigation is com- If the panel sustains the complaint, the and sometimes false, complaints. When pleted, the data is reclassified as "private case is referred to the chief of police for a the media learn of complaints, they often data" and remains private unless and until disciplinary decision,as At this point, the print the allegations but not the results. final disposition occurs after imposition of data is still ~private,' since final disposi- Thus, Minn. Stat. § 13.43 protects public discipline. The executive director reviews tion has not yet occurred. The chief can employees from the personal and profes- the completed investigation and makes makeoneoftwodecisions:nottodiscipline sional harm which can result frem making one of two possible determinations. The the officer, in which case the data remains allegations public except when substanti- director rules that either there is no prob- private forever, since no discipline was in- ated. able cause to believe that the officer vio- posed; or to discipline the officer. The Minnesota Supreme Court has rec- luted the ordinance, or there is probable A disciplined officer has a right to grieve ognized the dangers of release of private cause to believe that the officer violated the the discipline under the collective bargain- personnel data. stating ordinance. If a no-probable-cause determi- lng agreement between the city of Minne- nation is made, the data remains private spoils and the Police Officers Federation of lilt is crucial to remember that the data forever, s~nce no discipline was im- Minneapolis. Thus. final disposition of a report contains allegations against made, the case is forwarded for an eviden- [f the officer chooses not to o°Vaeve the dis- the charges are established or proven tiary hearing on the merits of the case.TM A cipline, the data on the complaint becomes false in an adversarial setting. [t is pre-evidential- hearing is held to discuss public, accessible to anyone. If the officer possible, and may even be the case evidentiary issues. Because data discussed chooses to grieve the complaint and the here, that the mere publication ofalIe- and collected in the pre-evidentiarF hear- discipline is upheld, the data becomes pub- gations, even if false, could damage the charged officer~sh and the officemsl' anco process, since this is when ~fina[ nently'~° representative are allowed to be present, disposition'occurs. However. ifthediscip[- Thus. while the public may feel informs- The case is then forwarded to a hearing ine is overturned by an arbitrator, the data tion is beingconcealed, the Legislature and efore the board. The board may delegate remains private, the courts have made it clear that, with .ne hearing of a case to a panel made up of Thus, the only data collected by the CRA continued on page 28 September-October 1994 27 Civilian Review * con[inued Your President Reports - continued ,,,r.=' , :~., 'i)r ~m- ~ndiv]dua[sarenotidentifiedandfrom premeCourt, theMinnesotaStateBar, the behalf o~' :h~, H('BA. ,tn lppropriate re- other characteristic that could Lawyers, and ~[innesota Mino~ty Law- nesota Supreme Court's racml and gender ~mquely identify an indi~dua[ is as- yers Association and lbcus on impIementa- bias report~ Trudy writ then make action diversity [n the legal profession, particu- mittee and Go~erningCouncil on what fur- Moreover, the act provides that ~the exis- larlyinareasofgenderandrace. [nthe]ast ther steps we need to take to ensure the tence and status of comp[ain~' is public 10 years we have come out with over 10 implementation or' the existing bench and information. Thus, the public is not com- reports discussing va~ous aspects of the bar report~ Please con,act Trudy with p[etely barred from access to disciplinary legal community's need to diversify. ~e your thoughts data. don't even have 10 ~op[e of color in most These three goals, along ~ith the many The limited ~ght to public access to dis- of our large-to-medium law firms, other projec:s, pro.ams, and events of the ciplinary data applies to the C~. A sus- T~dy Hall, president-elect, has a~eed HCBA should make us all extremely proud rained complaint against a pohce o~cer toactasHaisontothebar'sDiversityCom- of our co[lec~ivee~orts. The u]timategoal which results in discipline is public infor- mittee which is co-chaired by Judge Tanya of any president ~s to se~e the member- marion, while speci~c da~ on other corn- Bransford and Tom Ga~ett, the mana~ng ship wisely. I look forward to the oppo~u. plaints remains p~vate. ~is achieves the partner of Lindquist ~ Vennum. The Di- nity to do so in 1994-95. ~ result intended by the Le~s]ature to bal- ance the p~vacy in.rests of the public employee against the public's right to ENDNOTES ~ ~ The law firm of UN IMON ~ ~o.o~. isp[e~S~d to ~OU~Ce that Daniel S. Simon "Minn. S~r. ~ t~.Ot, susa. t~. ~ b~co~ ~ ~Mi~n. s~t. ~ t~.oL ~u~a. ~. 3ssoai~te o[the ~ ~Minn. Star. ~ 13.43, subd. 2 (bL D~e[ S. S~on ~admted ~om ~e Umv~i~ o~eso~ Law Sch~l c~ laude ~ ~:Ga~ty v. New,Jersey, 385 U.S. 493 (1967L 1992 ~d received ~s ~der~mte de~ee ~ honors m H~ties from ~e ~ i3.39, subd. 2. ~v~si~ otCalffo~a at B~keley m I989. :oc~ Administrative Rule 7.012. ~er ~ad~t~g from law school, S~on worked ~ a legal edkcr at West ~bIis~g :Vd.~C~ Administrative Rule 75735 teach~g LSAT ~d SAT prep~ation closes at ~e Kapl~ E2ucat~'cn Center .~tcr ~s :'C~ Administrative Rule ~. t2 l. ~cond ve~ o~law ~hoo. S~on cierked tbr ~e law fi~: 'Dun ap 7m~ Eemdt AbouttheMinnesotaGovern~ntDataPractices SIMON ~R~C~. N~N~- 3~1113 28 The Hennepin Lawyer