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Data Practices & Records Retention. Scott M. Kelly LMC Staff Attorney October 6, 2011. Session Overview. Government Records & Data Presumptions Important Terms Roles & Responsibilities Focus: HR & Payroll Recommendations Scenarios Questions. Why is this Important . - PowerPoint PPT Presentation
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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) [email protected]