                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1957

                               In the Matter of: KSTP-TV,
                                       Respondent,

                                           vs.

                                     Metro Transit,
                                   Respondent Below,

                                  Metropolitan Council,
                                        Relator.

                                 Filed August 24, 2015
                                       Affirmed
                                    Chutich, Judge

                            Office of Administrative Hearings
                              File No. OAH 8-0305-31782

Mark R. Anfinson, Minneapolis, Minnesota (for respondent)

David D. Theisen, Sydnee N. Woods, Metropolitan Council, St. Paul, Minnesota (for
relator)

         Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Chutich,

Judge.

                                    SYLLABUS

         Data recorded by an on-board video system in public buses and maintained by a

government entity for several reasons, and not solely because the bus driver is a

government employee, are public data under the Minnesota Government Data Practices

Act.
                                      OPINION

CHUTICH, Judge

       Relator Metropolitan Council challenges an administrative-law judge’s order

compelling production of video recordings of two incidents that occurred in 2013 on

Metro Transit buses, contending that the administrative-law judge erroneously concluded

that the video recordings are public data. Because we determine that the data in question

are public and do not fall within the definition of “personnel data” under the Minnesota

Government Data Practices Act, Minnesota Statutes section 13.43, subdivision 1 (2014),

we affirm.

                                         FACTS

       The facts of this case are undisputed.        Metropolitan Council is a “public

corporation and political subdivision of the state” that serves the Twin Cities

metropolitan area. See Minn. Stat. § 473.123, subd. 1 (2014). The council operates,

among other things, a large fleet of buses through its Metro Transit division. All Metro

Transit buses have digital video systems, consisting of five cameras, which record events

occurring on and immediately adjacent to each bus. The system captures audible sound

as well.

       In July and September 2013, two Metro Transit bus drivers were involved in two

separate and unrelated incidents while each was driving a bus. In each instance, transit

officials undertook investigations that involved downloading portions of the video

recordings from the buses to determine whether the bus drivers should be disciplined for

their conduct. Transit officials determined that neither incident warranted discipline.


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         Respondent KSTP-TV requested copies of the video recordings of each incident.

Metropolitan Council denied the requests, claiming that the portions of the video

recordings that it had reviewed were nonpublic “personnel data” on the bus drivers under

Minnesota Statutes section 13.43 (2014). The council also claimed that it lacked the

ability to separate the public data on the video recordings from the nonpublic “personnel

data.”

         KSTP filed a data practices complaint with the Minnesota Office of

Administrative Hearings. After a hearing, the administrative-law judge determined that

Metropolitan Council violated the data practices act and that KSTP was entitled to

disposition as a matter of law. In so finding, the administrative-law judge rejected the

council’s contention that because portions of the video recordings were reviewed for

investigatory and disciplinary purposes, the video recordings could be withheld as

containing private “personnel data” on the bus drivers.

         The administrative-law judge found that the council created the video recordings

for a variety of “service and safety-related functions” and the video recordings

documented events that occurred in public spaces when members of the public were

present. In fact, the judge noted that the council acknowledged that the portions of the

video recordings that it did not review are public data and available to anyone who

requests the footage.

         The administrative-law judge further noted that the purpose of classifying

“personnel data” that does not result in discipline as nonpublic is to protect public

employees from the taint of unproven allegations. Here, where the video recording


                                             3
system itself does not “editorialize,” the administrative-law judge concluded that this

public policy purpose is not undermined.

       Accordingly, the administrative-law judge determined that the video recordings

were public data, ordered the council to furnish them to KSTP, and then stayed the order

pending appeal. Metropolitan Council appealed by writ of certiorari.

                                           ISSUE

       Are data recorded by an on-board video system in public buses public data or

private “personnel data” on the bus driver under Minnesota Statutes section 13.43 when

the government entity maintained the video recordings for a variety of reasons?

                                       ANALYSIS

       Metropolitan Council appeals from the administrative-law judge’s order

compelling it to furnish the requested video recordings to KSTP. After a final decision

on a data practices complaint is issued by an administrative-law judge, the aggrieved

party is entitled to judicial review. Minn. Stat. § 13.085, subd. 5(d) (2014). This court

may affirm the decision, remand for further proceedings, or reverse or modify the

decision if the substantial rights of the petitioner may have been prejudiced because the

decision is, among other things, affected by an error of law, unsupported by substantial

evidence, or arbitrary or capricious. Minn. Stat. § 14.69 (2014).

       The issue presented here—whether video recordings from public buses are public

data or private “personnel data” under the data practices act—is a question of first

impression. It is also an issue of statutory interpretation that we review de novo. See

Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527, 531 (Minn. 2013). “The object


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of all interpretation and construction of laws is to ascertain and effectuate the intention of

the legislature.” Minn. Stat. § 645.16 (2014). “When legislative intent is clear from the

statute’s plain and unambiguous language, we interpret the statute according to its plain

meaning without resorting to other principles of statutory interpretation.”           City of

Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d 752, 755 (Minn. 2013).

       In examining the language of a statute, “we construe words and phrases according

to their common usage.” KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 788 (Minn. 2011)

(citing Minn. Stat. § 645.08 (2010)). We must also “read and construe a statute as a

whole and must interpret each section in light of the surrounding sections to avoid

conflicting interpretations.”   Id. (quotation omitted).     When relying upon the plain

statutory text, “we read words and phrases to avoid absurd results and unjust

consequences.” Id. (quotation omitted).

       Turning to the application of the act, the parties agree that Metropolitan Council is

a “government entity” subject to the act and that the video recordings are “government

data.” See Minn. Stat. § 13.02, subds. 7 (defining “government data”), 7a (defining

“government entity”) (2014); see also Minn. Stat. § 13.01, subd. 1 (2014) (stating that all

government entities are subject to the act). The act “regulates the collection, creation,

storage, maintenance, dissemination, and access to government data in government

entities.”   Minn. Stat. § 13.01, subd. 3 (2014).       It seeks “to balance the rights of

individuals (data subjects) to protect personal information from indiscriminate disclosure

with the right of the public to know what the government is doing.” Demers v. City of

Minneapolis, 468 N.W.2d 71, 72 (Minn. 1991). A “complex and technical” law, “[t]he


                                              5
Act operates through a system of classification and how the data are classified ultimately

determines who has access to the data.” Wiegel v. City of St. Paul, 639 N.W.2d 378,

381–82 (Minn. 2002).

       The data practices act mandates that all government data are public unless the data

are specifically classified by law as “not public.” KSTP-TV, 806 N.W.2d at 788. Section

13.01, subdivision 3 states, “This chapter . . . establishes a presumption that government

data are public and are accessible by the public for both inspection and copying unless

there is federal law, a state statute, or a temporary classification of data that provides that

certain data are not public.” Minn. Stat. § 13.01, subd. 3; see also Minn. Stat. § 13.03,

subd. 1 (2014) (stating that government data “collected, created, received, maintained or

disseminated by a government entity” is public unless otherwise classified). “‘Not public

data’ are any government data classified by [law] as confidential, private, nonpublic, or

protected nonpublic.” Minn. Stat. § 13.02, subd. 8a (2014).

       The council claims that the video recordings are “not public data” because section

13.43 classifies this data as private “personnel data” on the bus drivers. It contends that

the bus drivers are the subjects of the video recordings and that when the council

downloaded and maintained the video recordings specifically to evaluate the “conduct,

actions, and behavior” of the bus drivers, the audio and video excerpts became

“personnel data” under section 13.43 of the act. The council further argues that because

neither bus operator was ultimately disciplined, the data on the video recordings

permanently became private “personnel data” under this section’s provisions. See Minn.




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Stat. § 13.43, subds. 2, 4; Demers v. City of Minneapolis, 486 N.W.2d 828, 831–32

(Minn. App. 1992).

      The plain language of section 13.43 does not support the council’s argument.

While it is true that “personnel data” of public employees are private unless specifically

listed as “public data” in another subdivision, see Minn. Stat. § 13.43, subds. 2, 4, the

council cannot show that these video recordings meet the definition of “personnel data.”

      The definition of “personnel data” is straightforward.       “Personnel data” are

“government data on individuals maintained because the individual is . . . an employee of

. . . a government entity.” Minn. Stat. § 13.43, subd. 1. But the parties disagree as to

three definitional issues: whether data in these video recordings are (1) “data on

individuals”1 that were (2) “maintained,” (3) “because” the bus drivers are Metro Transit

employees.

      The record shows as a matter of law that, even assuming without deciding that the

video recordings are “data on individuals,” the other two prerequisites are not met. As

the council acknowledged, and the administrative-law judge specifically found, these

video recordings serve “a variety of service and safety-related functions for the agency.”

These purposes presumably include criminal investigations, accident investigations,

monitoring passenger behavior and needs, as well as evaluating the performance of

personnel. Given the administrative-law judge’s unchallenged factual finding concerning

the many uses of the video recordings and the practice of Metro Transit to routinely


1
   The act defines “Data on individuals” as “all government data in which any individual
is or can be identified as the subject of that data.” Minn. Stat. § 13.02, subd. 5 (2014).

                                            7
preserve these video recordings for a period of time, regardless of whether any

complaints occur, the video recordings are not data “maintained because” the bus drivers

are employees of Metro Transit. See Minn. Stat. § 13.43, subd. 1. Accordingly, they do

not fall within the plain language of section 13.43 and cannot be classified as “personnel

data.” The video recordings are therefore public data under the data practices act.2

       While factually dissimilar to this case, the supreme court’s decision in Demers

nevertheless supports our determination that the video recordings are public data. In

Demers, a college student sued the City of Minneapolis for a declaratory judgment that

nonpending and noncurrent police-department internal-affairs complaint forms are public

data. Demers, 468 N.W.2d at 72. The city countered that the identifying information of

those persons who filed complaints against Minneapolis police officers are private

“personnel data.” Id. at 73. The city refused to disclose that information. Id. at 72.

       The Minnesota Supreme Court agreed with the student and concluded that the

“information identifying complainants on nonpending, noncurrent police department

internal affairs complaint forms is public government data under the [data practices act].”

Id. at 74. The court reasoned,

              The plain language of these statutes indicates that personnel
              data are data that identify the employee who is the subject of
              the data. The police officer, whose identity is public data
              under section 13.43, is the employee who is the subject of the
              data. The complainant is neither the employee nor the subject
              of the data. Accordingly, as held by the trial court and the

2
   Because we determine that the video recordings are not “personnel data,” we do not
reach the council’s argument that “personnel data” are permanently classified as private
when no discipline is imposed as a result of an investigation. See Minn. Stat. § 13.43,
subd. 2(a)(5).

                                             8
              court of appeals, information identifying the internal affairs
              complainant is not “personnel data” at all.

Id. at 73.

       The principle demonstrated in Demers holds true here as well. Data that are not

initially classified as private “personnel data” are not automatically converted to private

data merely because the data are used for personnel purposes. Video recordings from

public buses are maintained for a variety of reasons. Although the video recordings were

eventually downloaded and used to review the bus drivers’ conduct, that investigatory

use does not mean that the video recordings became “personnel data.”

       The council disagrees and presents a timing argument as to when the data’s

classification should be assessed, asserting that the act “acknowledge[s] and, in [some]

circumstances, require[s] data to change classifications.” It contends that, while the

video recordings are public data while the cameras are recording on the bus, once the

video recordings are downloaded to review and to evaluate the conduct of the bus drivers,

the video recordings’ classification changes permanently to private “personnel data.”

Because the requests for the video recordings here were made when the video recordings

were already being used for personnel purposes, the council contends that the private

“personnel data” classification applies, citing section 13.03, subdivision 9 (2014), in

support.3 But KSTP asserts, and we agree, that this subdivision resolves which version of



3
   Subdivision 9 provides that “the classification of data is determined by the law
applicable to the data at the time a request for access to the data is made, regardless of the
data’s classification at the time it was collected, created, or received.” Minn. Stat.
§ 13.03, subd. 9.

                                              9
the statute applies when the statute has been amended. Here, there was no intervening

amendment to the “law applicable to the data.”

       And as we have already provided, the video recordings’ classification as public

data is not forfeited because they are maintained in part for personnel purposes. Nor does

the presence of a public employee change the classification of a recording of events that

occurred in public when the recording was originally maintained by the government

entity for many purposes. Accordingly, when KSTP made the data request, the video

recordings were public data that KSTP was entitled to access.

       Public policy supports our reading of the plain language of the definitional section

of 13.43 to exclude these video recordings from the classification of “personnel data.” In

the context of this case, classifying these video recordings as public data makes sense.

The driving force behind section 13.43’s classification of certain data as private is to

“protect the privacy of government employees.” Demers, 468 N.W.2d at 73. But any

concern for protecting a public employee’s personal information is lessened by the public

setting and nature of the employee’s actions here. While driving a public transit bus

throughout the public highways and byways of the metropolitan area, the driver’s actions

are hardly private; how a driver performs his duties is highly visible to passengers, and

even to nearby pedestrians and motorists.

       Moreover, any concerns that a public employee may be exposed to the stigma of

unproven allegations or to the potential bias of exaggerated reporting is alleviated by the

nature of the video recording system. The system records regardless of who is operating

the bus, who is on the bus, or what is happening in or around the bus.


                                            10
       Finally, as KSTP asserts, interpreting section 13.43 broadly to mean that data

originally classified as public data can be converted, perhaps permanently, to private data

because they are used in a personnel investigation that did not result in discipline may

allow manipulation by government entities to prevent public access to certain

government data.4     During the course of a personnel investigation, for example, a

government entity could potentially claim that virtually any data serve a role in its

investigation and thereby reclassify those data as private “personnel data.” Such data

could, in turn, remain permanently classified as private if no discipline is imposed. This

result would be contrary to the crux of the act—that all government data are presumed

public unless otherwise classified by statute or other law. Minn. Stat. § 13.01, subd. 3.

                                     DECISION

       Because the video recordings were maintained for a variety of purposes, and not

solely because the bus drivers were government employees, they are public data. We

affirm the order of the administrative-law judge compelling Metropolitan Council to

furnish the on-board bus video recordings to KSTP.

       Affirmed.




4
  Neither KSTP nor the record suggests any improper motivation by Metropolitan
Council in withholding the data here.

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