Data Practices & Records Retention

1. Data Practices & Records Retention Scott M. Kelly LMC Staff Attorney October 6, 2011

2. Session Overview • Government Records & Data • Presumptions • Important Terms • Roles & Responsibilities • Focus: HR & Payroll • Recommendations • Scenarios • Questions

3. Why is this Important • Documentation: Decision-making Process • Balancing Act - Rights and Needs: • Public • Individuals • Government • Consequences for Noncompliance

4. 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

5. Laws and Responsibilities All Government Units Must: • Secure & provide access to: • Government data • Create, retain & manage: • Official records

6. Data and Records

7. Government Data Minn. 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

8. Purpose of the “Act” • Classifies for Accessibility • Provides rights and safeguards for: • The Public • The Data Subjects • Requires data be accurate, complete, currentand secure

9. Presumption

10. Public • Available: • To anyone • For any reason • Minutes, ordinances, agendas, policies, contracts, . . .

11. 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, . . .

12. 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, . . .

13. 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

14. Personnel Data Data collected because the individual is or was: • An Employee • An Applicant for Employment • Volunteer • Independent Contractor*

15. Presumption

16. 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

17. 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

18. 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

19. Responding to Data Requests

20. Officials Specific employees responsible for carrying out the requirements of the Act: • Responsible Authority • Designee(s) • Data Practice Compliance Officer

21. Request for Information City response to request will vary if request is by: • A Member of the Public • The Data Subject

22. Member of the Public 1) 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”

23. Data Subject 1) 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

24. Penalties

25. Official Records Minnesota 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, . . .

26. What’s a Record? Records 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 • Ordinances & Resolutions • Meeting Minutes • Petitions & Complaints • Policies • Contracts & Finances • Permits & Licenses • Election Information • Utilities • Payroll – HR Information • Etc., Etc., Etc.

27. Records Preservation Minnesota Statutes Chapter 138 • Must preserve official records • Follow Records Retention Schedule for disposing of records no longer: • Needed • Required by law • Safeguards for destruction

28. Evaluating Records Present and Future Value

29. Administrative Value • Records created to fulfill city responsibilities: • Annual reports • Correspondence • Committee minutes • Policies and procedures • May have long or short-term value

30. 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.

31. 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

32. 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

33. 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

34. 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”

35. Recommendations 1) 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.

36. Questions?

37. Scenarios

38. Scenario 1 Person 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?

39. 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.”

40. Scenario 2 Written request for Data: “I want Joint Powers.” Response?

41. Clear & Understandable Minn. Stat. 13.05, subd. 12 A person may be asked to provide certain identifying or clarifyinginformation 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

42. Scenario 3 In Writing: “I would like all of the 2008 Planning and Zoning Committee and 2008 City Council Meeting Minutes.” • Any Important Information Lacking?

43. Inspection or Copies Depends 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”

44. Scenario 4 Resident 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?

45. Responsible Authority Responsible 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?

46. 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?

47. Security Safeguards Minn. 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”

48. Scenario 6 Written 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?

49. Requestor’s Identity If 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?

50. 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?