GOVERNMENT DATA: CANDIDA TES FOR PUBLIC OFFICE: Criminal history data collected by city on council candidates is not private “applic ant” data under Minn. Stat. § 13.43 (2004). Authority of city to collect su ch data questioned, Minn. Stat. §§ 13.03, 13.43, 13.601.

852 (Cr. ref. 64, 184-a)

October 6, 2006

Michael J. Waldspurger Kimberly K. Sobieck Ratwik, Roszak & Maloney, P.A. 300 U.S. Trust Building

730 Second Avenue South Minneapolis, MN 55402

Dear Mr. Waldspurger and Ms. Sobieck:

Thank you for your correspondence of A ugust 7, 2006 requesting an opinion of the Attorney General concerning the proper classifi cation of criminal background data collected on behalf of the City of Red Wing relating to candidates for election to the city council.

FACTS AND BACKGROUND

You state that after receiving written consent from candidates for city council, the City of Red Wing (the “City”) contracted with a private firm to conduc t criminal background searches

on the candidates. You state further that the City received the results of the searches, and utilized the information “solely to confirm the candidates’ eligib ility to run for public office.” 1
The City considers the data to be pr ivate under Minn. Stat. § 13.601, subd. 3 (Supp. 2005).

The Red Wing Republican-Eagle recently requested that the City provide it with the results of criminal background checks made on c ity council candidates. The City denied the request, asserting that the data is private under Minn. St at. § 13.601, subd. 3 (Supp. 2005). The newspaper has disagreed with the City’s char acterization of the data as private, citing

Commissioner of Administ ration, Advisory Opinion 05-036, November 18, 2005 (copy enclosed).

You refer to a July 14, 2006 opinion from th is Office to the Roch ester City Attorney (copy enclosed) which you characterize as stating that, in cities where city council members are

1 The facts supplied do not indicate who has b een granted access to the data for purposes of making this determination, or wh ether the background searches we re also performed on council

incumbents.Michael J. Waldspurger Kimberly K. Sobieck October 6, 2006 Page 2

considered to be “employees” of the city, “candida te data” is presumptively private. You do not believe that opinion to be a formal opinion of th e Attorney General for purposes of superseding the Commissioner of Administration’s opinion pursuant to Minn. Stat. § 13.072, subd. 1(f) (2004).

Based upon the foregoing, you request that the Attorney General issu e a “formal” opinion on the following question:

Are data on candidates who run for public o ffice classified as private data, except as enumerated in Minn. Stat. § 13.601, subd. 3 and § 13.43, when the elected

official is considered to be an employee of the governmental entity?

LAW AND ANALYSIS

First, while the question stat ed in the July 14, 2006 opinion of this Office did refer to “applications for election or appointment to a public body,” the opinion itself only addressed “data submitted by applicants for appointment.” Thus, that opinion was not intended to address

“candidate data” on individuals runn ing for election to public office.

Furthermore, the July 14, 2006 opinion did not conclude that data submitted by applicants for appointment could be classifi ed as private pursuant to Minn. Stat. § 13.601, subd. 3. That subdivision lists pa rticular data items that are publ ic, and does not it self classify any data as private. Our opinion agreed with the Commissi oner’s Advisory Opinion 05-036

insofar as it stated that the list ing of certain data on applicants for public office as public under section 13.601, subd. 3 does not imply that all other applic ant data is privat e. We disagreed

however with the Commissioner’s conclusion that enactment of section 13.601, subdivision 3 in effect classified all data on such applicants as public. Our opinion conc luded instead that the listing of items of public data in section 13.601 did not preclude other data from being classified as private under another stat ute such as Minn. Stat. § 13.43.

Second, under the Minnesota Government Data Practices Act, all government data is considered public unless classified otherwise by Minnesota statute, fede ral law, or temporary classification. Minn. Stat. § 13.03, subd. 1 (2004).

Third, the classification of particular data may be depende nt, not only upon its substantive content, but also upon the government purpose for wh ich it has been created or collected. An item of data concerning an indivi dual may be private or c onfidential in certain contexts and public in others. For example, a listing of a public official ’s personal investments would be private as disclosed on a personal tax return, but public when submitted with a

mandated economic disclosure statement. See Minn. Stat. §§ 10A.07, 13.601, subd. 1, 270B.02 (2004). Therefore, in order to de termine the correct classification fo r particular data, it is often necessary to determine the specific legal aut hority pursuant to which it has been created,

collected or retained.Michael J. Waldspurger Kimberly K. Sobieck October 6, 2006 Page 3

Fourth, Minn. Stat. § 13.05, subd. 3 provides:

Subd. 3. General standards for collection and storage. Collection and storage of

all data on individuals and the use and dissemination of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically au thorized by the legislature or local governing body or mandated by the federal government.

Fifth, data on candidates for election to vari ous public offices is collected in accordance with several statutes. These include, for example, Minn. Stat. §§ 10A.09 (statements of economic interest); 10A.20, 211A.02 (campai gn reports); 204B.06, 204B.07, 205.13 (affidavits of candidacy and nominating petitions). Informa tion contained in those filings is plainly public, either by express statutory mandate or under th e presumption set forth in Minn. Stat. § 13.03,

subd. 1.

Sixth, unlike one applying for appointment by a city council to a vacant council position,

candidates for election cannot be reasonably viewed as “appli cants for employment” by the governmental units they seek to serve. Candidates for election do not make application to, nor is their selection made by, official s of the governmental unit acting as an “appointing authority.” They are instead elected by the voters, 2 and all persons who meet basic qualifications specified

in the Constitution 3 and statutes 4 are eligible to seek election. Consequently, it is our view that candidates for election to public office by the vote rs are not “applicants for employment” by the City within the meaning of Minn. Stat. § 13.43, subd. 3. Nor are we not aware of any other statute, federal law, or temporary classificati on that would classify government data supplied by, or on behalf of, candidates in the course of the official election process as other than public.

Seventh, as noted above, collect ion, storage and use of data on individuals is limited by law to that necessary for a government agency to carry out some specifically authorized activity. We are aware of no authorized government pr ogram under which it would be necessary or appropriate for city officials to delve into the backgrounds of persons s eeking election to city offices for purposes of obtaining information that would reflect negatively on their eligibility or qualifications for office.

A filing officer, such as the city clerk, ha s limited authority to withhold the name of a

candidate from the ballot in certai n narrowly defined circumstances. See, e.g., section 204B.10 (2004). However, that authority does not extend to other local officials, or to undertaking of any independent investigation of candidates, or ot herwise passing judgment upon their eligibility.

See Ops. Atty. Gen. 911-j, September 15, 1970 (no au thority for secretary of state to make

2 According to the facts given, how ever, the results of the criminal background investigations are not made available to the voters, but are apparently rest ricted to use by unspecified city officials.

3 See Minn. Const. art. VII, § 6 and XII, §§ 3, 4.

4 See, e.g., Minn. Stat. §§ 201.014, 204B.06 (2004).Michael J. Waldspurger Kimberly K. Sobieck October 6, 2006 Page 4

independent inquiry into candi dates’ qualifications ); 184-I, August 8, 1 940 (County auditor not

authorized to withhold name from ballot on basis of information concerni ng candidate’s criminal history). Further, while a convict ed felon whose civil rights have not been restored is ineligible to appear on the ballot, 5 candidates for office must submit a sworn statement at the time they file indicating that they are “eligible” voters. Excluded from the definition of “eligible voter” is a person who has been convicted of a felony who has not had his civil ri ghts restored. Minn. Const. art VII, § 1; Minn. Stat. § 201.014, subd. 2 (2004).

Finally, implicit in the facts provided is the s uggestion that “the City’s ” intent was to take some sort of action in opposition to the candidacy of any person it determined to be ineligible on

the basis of information revealed in the crimin al background checks. As a general proposition, it is considered contrary to public policy for the resources or aut hority of a government agency to be used for purposes of attempting to influence the outcome of an elec tion for public office. See, e.g., Stanson v. Mott, 17 Cal.3d 206, 217, 551 P.2d 1, 9 (Cal. 1976); Op. Atty. Gen. 125B-21, March 19, 1921 (copy enclosed).

OPINION

For the foregoing reasons, it is our opinion that information collected by the City in the course of criminal background investigation of ca ndidates for election to city offices would not be classified as private “app licant data” under Minn. Stat. § 13.43, subd. 3. Therefore, unless it may be classified as private unde r another statute, federal law, or temporary classification, it would be presumptively public under Minn. Stat. § 13.03, subd. 1. We are unable to identify any other applicable statutory classification because we are not aware of any source of authority for collection of criminal history data in the circ umstances described. Consequently, we answer your question in the negative.

Respectfully submitted,

MIKE HATCH Attorney General

KRISTINE L. EIDEN Chief Deputy Attorney General

Enclosures

AG: #1667586-v1

5 Minn. Const. art. VII §§ 1, 6; Mi nn. Stat. §§ 201.014, subd. 2(a); 204B.06 (2004).