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HomeMy WebLinkAbout01-29-1998 ArticlesPrivate Data in the Civilian Review The Minneapolis Civilian Police Review Authority (CRA) was the first agency of its type created in the state of Minnesota. It was created to improve citizen -police rela- tions and to establish a greater trust in the oversight of police conduct. However, it has remained somewhat controversial, in part because the CRA's actions are largely con- fidential, and therefore largely concealed from the public. Only summary data, exis- tence and status of complaints, and data supporting discipline after final disposi- tions are public. All other data is private. This article will explain the reasons for the confidentiality of the process. Overview of the CRA The CRA was established by ordinance in 1990.1 The scope of the CRA's authority is set forth in Minneapolis Ordinance g 172.20, which provides that the CRA "shall receive complaints that allege mis- conduct by an individual police officer or officers, including, but not limited to, the following: (a) Use of excessive force; )b)Inappropriate language or attitude; c , Harassment; d) Discrimination in the provision of police services or other discrimina- tory conduct on the basis of race, color, creed, religion, ancestry, na- tional origin, sex, affectional pref- erence or age; e) Theft; (f) Failure to provide adequate or timely police protection." The CRA consists of a staff, which pro- cesses the complaints, and a board, which acts as fact finder in cases proceeding to hearing. The staff includes three civilian By Ann E. Walther investigators,2 who investigate the com- plaints, and an executive director, who makes the final determination on the dis- position of complaints and prosecutes cases heard by the board. The investiga- tors are prohibited from being, or ever hav- ing been, a sworn Minneapolis police officer.3 The executive director must be an attorney licensed to practice in the state of Minnesota i The board consists of seven civilian members, four who are appointed by the City Council, and three who are appointed by the mayor, subject to the approval of the Council.5 Board members cannot be sworn members of the Minneapolis police force. They are not required to have any knowl- edge of police procedures, nor are they re- quired to attend police training or ride-alongs. By contrast, the St. Paul ordi- nance creating a civilian review board re- quires that two members of the board be current members of the St. Paul police department. It also requires each board member to participate in a training pro- gram that includes training in police work and ride-alongs with an officer on actual patrol duties.s The Data Practices Act and the CRA Process The Minnesota Government Data Prac- tices Act )Minn. ch. 13)(hereinafter re- ferred to as the "act") "regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions."' Government data is defined as "all data collected, cre- ated, received, maintained or dissemin- ated by any state agency, political subdivision, or statewide system regard- less of its physical form, storage media or conditions of use."s One classification of government data is "personnel data," de- fined as data on individuals collected 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 contrac- tor with a state agency, statewide sys- tem or political subdivision or is a member of or an applicant for an advi- sory board or commission.9 Since the CRA collects data regarding com- plaints made against Minneapolis police officers for alleged misconduct occurring in the course of their employment with the city of Minneapolis, all data collected by it is "personnel data." Government data on individuals, includ- ing personnel data, is classified as either public, private, or confidential.lo Public data on individuals is accessible to the public." Private data on individuals is as- sessible only to the subject of the data.12 Confidential data on individuals is acces- sible to neither the public nor the subject of the data. 13 Minn. Star. $ 13.43 defines public per- sonnel data as including the existence and status of any com- plaints or charges against the em- ployee, whether or not the complaint or charge resulted in a disciplinary action; the final disposition of any dis- ciplinary action together with the spe- cific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employ- ees of the public body.14 Any personnel data not specifically desig- nated as public is classified as "private."1' 26 The Hennepin Lawyer t�-."u�in.�r�.�Ln.r�n,�w�•rnmentem- ,InbrP; 'le,mnv, pybllc Erik liter'in.11 rtL _ .I, �_ir i�.. �,i �i•..�nq .mpu_i rn,r•.,r I:"9 plln,� o,),irn Pn "cc ir- �-1,.,.. -t.Itr .Itienc•.. tat,.w�.iie- _ 'nl. r ooiltical ,uhdl I<inn makes :t= n.I leclsinn Ihout the dlsc•.plinary letlon regardless of the pus=)bilk: of .In, later proceedings or court pro- ceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final dispo- sition occurs at the conclusion of the arbitration proceeding, or upon the failure of the employee to elect arbitra- tion within the time provided by the collective bargaining agreement. le When a complaint is brought to the CRA. it is investigated by the staff. Civilian witnesses are contacted and asked to give statements. Officers are compelled to give statements under penalty of discipline. They are given a Garrity warning, I] which provides that any statement given by the IIf - lumnr^ rt "iL�n Inp r- ii -'r.. .... lrl. i„.... r:l', 'Ja....!, I hr„e llrillne"� Ir 'nf' n,r:l r'd. B,•cause -he iatl hrurd .Ind , Alecterl at 'ne uierg,jr\'neann;s i> p1'1111te. nu% -h, panel. rh,• asecutive ,ilrecwr. the .Iit,edorfcer' .,Indtheo[iicers repre- +entaa,e may he present throughout the entire heann'. The burden of proof is on the CRA. and it must prove a violation of the ordinance bv'clear and convincing ev- idence.'-'t Witnesses are sequestered and cannot stay in the hearing following their testimony. However, they are entitled to bring an attorney, who may be present during their testimony,"' The private at- torney may counsel the client. but may not participate in the hearing process.23 After the hearing has concluded, the panel deliberates. It may make one ofthree findings: I 11 exonerated, the panel finds either the facts alleged in the complaint are true but do not constitute misconduct by the officer, or the facts alleged in the complaint are not true; (2) not sustained, The only data collected by the CRA which is public is that on a sustained complaint where discipline has been imposed. officer cannot be used against him or her a a subsequent criminal proceeding. During the investigation process, the data collected by the CRA is considered "investigative data" under Minn. Stat. § 13.39, and is classified as "confiden- tial."ts After the investigation is com- pleted, the data is reclassified as "private data" and remains private unless and until final disposition occurs after imposition of discipline. The executive director reviews the completed investigation and makes one of two possible determinations. The director rules that either there is no prob- able cause to believe that the officer vio- lated the ordinance, or there is probable cause to believe that the officer violated the ordinance. If a no -probable -cause determi- nation is made, the data remains private data forever. since no discipline was im- posed. In that case, the data is accessible only to the subject of the data. If a probable -cause determination is made. the case is forwarded for an eviden- tiary hearing on the merits of the case.t9 A pre -evidentiary hearing is held to discuss evidentiary issues. Because data discussed and collected in the pre -evidentiary hear- ing is classified as "private," only the CRA, the charged officensi, and the officensl' representative are allowed to be present. The case is then forwarded to a hearing efore the board. The board may delegate -be hearing of a case to a panel made up of insufficient evidence exists to sustain the complaint; or (3) sustained.24 If the finding is, either exonerated or not sustained, the data collected regarding the complaint re- mains private data forever, because no dis- cipline was imposed. If the panel sustains the complaint, the case is referred to the chief of police for a disciplinary decision.t5 At this point, the data is still "private," since final disposi- tion has not yet occurred. The chief can make one of two decisions: not to discipline the officer, in which case the data remains private forever, since no discipline was im- posed; or to discipline the officer. A disciplined officer has a right to grieve the discipline under the collective bargain- ing agreement between the city of Minne- apolis and the Police Officers Federation of Minneapolis. Thus, final disposition of a sustained CRA complaint in which discipl- ine is imposed does not occur until after arbitration or the time to grieve elapses.20 If the officer chooses not to grieve the dis- cipline, the data on the complaint becomes public. accessible to anyone. If the officer chooses to grieve the complaint and the discipline is upheld, the data becomes pub- lic at the end of the last step of the griev- ance process, since this is when "final disposition" occurs. However, if the discipl- ine is overturned by an arbitrator, the data remains private. Thus, the only data collected by the CRA A-%%f 3ALTHER Is .In .L;xnclate attor- ne,. .vlth Gregg M. Co rvv in & Associates. where ;he practices in the area of public sector labor law. She represents Minneap- olis police officers ap- pearing before the Minneapolis Civilian Police Review Authority. which is public is that on a sustained com- plaint where discipline has been imposed. Since the vast majority of complaints is not sustained, the majority of data collected by the CRA is inaccessible to the public. While this may be frustrating, it is the intent of the act. The Minnesota Supreme Court held in Annandale Adcoeate o. City of An- nandale that "the legislature's obvious in- tent [is] to give the personnel data of public employees substantial privacy protec- tions."s9 Moreover, the court noted that "a majority of employee disciplinary matters handled internally involve job -related and non -criminal misconduct. Therefore, re- moval of privacy protections is not only unnecessary, but is contrary to legislative intent.'"-8 Don Gemberling, an expert on the act, notes that "[t]he expansion of pub- lic access to government information nec- essarily jeopardizes the protection from disclosure of sensitive, personal informa- tion on individuals."29 Public employees, particularly police of- ficers due to their statutory right to use force, are at risk from unsubstantiated, and sometimes false, complaints. When the media learn of complaints, they often print the allegations but not the results. Thus, Minn. Stat. § 13.43 protects public employees from the personal and profes- sional harm which can result from making allegations public except when substanti- ated. The Minnesota Supreme Court has rec- ognized the dangers of release of private personnel data, stating lilt is crucial to remember that the report contains allegations against [the public employee) which have never been proven in court. Thus- this situation is different from one where the charges are established or proven false in an adversarial setting. [t is possible, and may even be the case here, that the mere publication ofalle- gations, even if false, could damage the employee's reputation perma- nently.10 Thus, while the public may feel informa- tion is being concealed, the Legislature and the courts have made it clear that, with continued on page 28 September -October 1994 27 Civilian Review - continued ,P,.ct 'a per+onneI data tin public employ - 0e,. hr public ha, .,nly a limited right to h,ctpiinary information. The act provides tar ',ummary data' may be released on prilate data. Summary data is defined as -tausticai records and reports derived from data on individuals but in which individuals are not identified and from which neither their identities nor anv other characteristic that could uniquely identify an individual is as- certainable. It Moreover, the act provides that "the exis- tence and status of complaints" is public information. Thus, the public is not com- pletely barred from access to disciplinary data. The limited right to public access to dis- ciplinary data applies to the CRA. A sus- tained complaint against a police officer which results in discipline is public infor- mation, while specific data on other com- plaints remains private. This achieves the result intended by the Legislature to bal- ance the privacy interests of the public employee against the public's right to know.32 ENDNOTES 'Minneapolis Code of Ordinances, Title 9, Ch. 172, 'Id. § 172.10. 9d. § 172.10. 'Id. SId. § 172.30. 'St. Paul Administrative Code, Ch. 120, § 120.03. 'Minn. Stat. § 13.01, solid. 3. 'Minn. Stat. § 13.01, solid. 7. "Minn. Stat. § 13.43, solid. 1. 10Minn. Stat. § 13.02. "Minn. Stat. § 13.01, subd. 15. ''-Minn. Stat. § 13.01, subd. 12. "Minn. Stat. § 13.01, subd. 3. "Minn. Stat. § 13.43, subd. 2 (a). "Minn. Stat. § 13.43. "Minn. Stat. § 13.43, subd. 2 (b). "Garrity v. New Jersey, 385 U.S. 493 (1967). 18CRA Administrative Rule 1.232, Minn. Stat. § 13.39, subd. 2. '9CRA Administrative Rule 6. 171. 10CR4 administrative Rule 7.012. "CRA administrative Rule 7521. -'CRA .administrative Rule 7.5735. °Ill. -'CRA Administrative Rule 8.121. "CRA Administrative Rule 9.01. '^Minn. Stat. § 13.43. subd. 2, b,. '-435 N. W.2d 24, 33, Minn. 1989). -"Id. "'Donald A. Gemberling & Gary A. Weissman, Data Privacy Everything You Wanted to Know About the 1finnesota Government Data Practices Act —From ''A" to •'Z". 8 Wm. Mitchell L. Rev. 57:3.578 1 1982), "'Annandale advocate v. City of Annandale, 435 N. W.2d 24, 33 (Minn. 1989). 'Minn. Stat. § 13.01. subd. 19. 'Gemberling & Weissman, supra note 29. ti Your President Reports - continued :hi- nmmittr.. - aiar, ,. iu_: �h :i. need; uu te•n,•r,u.<i trlp. ind Lupo, r� cisro =uu rs+ful. isu„pelt that•.nu .ill Brad.,rid share your idea, with him,n ^nu—o tccnm- piuh these objectnes. My third ,1,oal ,s to cake the numerous reports on diversav by the Minnesota Su- preme Court. the Minnesota State Bar, the Hennepin County Bar. Minnesota Women Lawyers, and Minnesota Minoritv Law- yers Association and focus on implementa- tion. We don't need another report on diversity in the legal profession, particu- larly in areas of gender and race. In the last 10 years we have come out with over 10 reports discussing various aspects of the legal community's need to diversify. We don't even have 10 people of color in most of our large -to -medium law firms. Trudy Hall, president-elect, has agreed to act as liaison to the bar's Diversity Com- mittee which is co-chaired by Judge Tanya Bransford and Tom Garrett, the managing partner of Lindquist & Vennum. The Di- The ]awfirm of ..-r,t- ,u• 'or im- plei _ .•..• . - m, of the H('B a - _ ,. r�,. Report. Thi, r,, tor en- thusi.,.r. nter'ested. amtuc .,. r : m Garrett. Trod r .k1.. , .. +)n to the women_ .o „m)ciations. She is als„ : ,rmulating, on behalf of -n, HI'BA. in appropriate re- sponse Co the recommendation of the Min- nesota Supreme Court's racial and gender bias report;. Tradv will then make action recommendations to the Executive Com- mittee and Governing Council on what fur- ther steps we need to take to ensure the implementation,)( the existing bench and bar reports. Please contact Trudy with your thoughrs. These three goals. along with the many other projects, programs. and events of the HCBA should make us all extremely proud of our collective efforts. The ultimate goal of any president is to serve the member- ship wisely. I look forward to the opportu- nity to do so in 1994-95. lll�, MAUN & SIMON ispleased to announce that Daniel S. Simon has become an associate of the firm Daniels. Simon graduated from the University of Minnesota Law School cum laude in 1992 and received his undergraduate degree with honors in Humanities from the University of California at Berkeley in 1989. After graduating from law school, Simon worked as a legal editor at West Publishing Company writing analyses of appellate opinions. Since Fabruar. 993, he has been teaching LSAT and SAT preparation classes at the Kaplan=iucacen Center ..ouler his second vear of law school, Simon clerked for the law [sari :i Cun:ap. Finscth. Berndt & Sandberg in Rochester, MIN Simon is among the 30 lawyers with Maun & Simon u,-,c puc:ce in .he areas of business law, tax and litigation. MALTN& 2300 Woven TRADE CENTER• ST. Pu.L • M9-2900 SIIVION 290ONoRwEsrCerr •-�,fztiNTAPoLis•3.3E-1113 28 The Hennepin Lawyer