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Advisory Opinion 94-002

January 4, 1994; School District 829 (Waseca)

1/4/1994 10:15:43 AM

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.


Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation

Facts and Procedural History:

On December 14, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja D. Kerr, who is the attorney for X, a minor, and his mother Y. X is a student in the Waseca Public Schools, Independent School District Number 829, and hereinafter District 829 . The facts Ms. Kerr alleged in her request were as follows.

On October 1, 1992, Y requested all of X's school records. Ms. Kerr provided a copy of a letter addressed to the Waseca Middle School and dated October 1, 1992 that states the Y is . . . requesting copies of X's Qum file, Special Education file and all other records . In response, District 829 provided some data on October 1, 1992. The transmittal letter, on Waseca Public School stationery, that accompanied the data provided contained the following language. The enclosed envelope contains all of X's files and information that we have on file. The letter was signed by a Mr. John Currie who identifies himself as an assistant principal.

On October 5, 1992, Ms. Kerr sent a letter to District 829, identified herself as X's family's attorney, mentioned an enclosed release of information and requested a special education due process hearing. The release of information asked for a variety of educational data about X.

On October 12, during a discussion with Becky Riffe, an attorney for District 829, Ms. Riffe acknowledged that she had certain drawings done by X in her possession that had not been shared with Y. In a letter summarizing that discussion, Ms. Kerr pointed out to Ms. Riffe that Y had requested all records about her son and the District's failure to provide the drawings and any other files was not in compliance with the Minnesota Government Data Practices Act.

In a separate letter, Ms. Kerr identified the items Y had received from the District and asked that any other documents about X provided to Ms. Riffe by her clients be forwarded to Ms. Kerr. In response to that letter, Mr. William Hoversten, another attorney for District 829, sent an October 14, 1992, letter to Ms. Kerr explaining that he was asking his client to assemble all information about X within the District in a single file. According to Ms. Kerr, no additional data was sent to her.

Subsequently, the District changed lawyers and on October 20, 1992 additional documents were provided to Ms. Kerr by District 829. According to Ms. Kerr, this stack of documents was catalogued on two pages and she included a summary description of the documents that in her summary covered 78 separate items. These documents were sent by Ms. Lucia A. Blau, the secretary to the District's new attorney, Ms. Susan E. Torgerson. The letter of transmittal contains the following sentence. Enclosed for your file is a complete copy of X's school records.

On November 17, 1992, just prior to a hearing scheduled to begin on November 22, 1992, the District delivered a stack of records that it planned to introduce as evidence at the hearing. This stack was catalogued on eight pages and contained documents that were dated prior to Y's initial request for documents and that had not been previously provided to either Y or Ms. Kerr.

The educational dispute was resolved by a settlement between District 829 and X's family. However, issues arising out of the Data Practices Act were left open by agreement of the parties. Following this recitation of her view of what happened, Ms. Kerr then requested an opinion of the Commissioner of Administration on the two issues described below. In response to Ms. Kerr's request, PIPA, on behalf of Commissioner Anderson, wrote to Fran Heinen, Superintendent of District 829. The purposes of this letter were to inform District 829 of Ms. Kerr's request, to acquaint the District with the Commissioner's authority to issue opinions, to ask the District or its attorney to provide any information in support of the District's position and to inform the District of the date on which the Commissioner was required to issue this opinion. A copy of this letter was sent to Ms. Susan Torgerson in her role as attorney for District 829.

On December 27, 1993, PIPA received a facsimile transmitted copy of a response signed by Ms. Elizabeth B. Davies and also on behalf of Ms. Torgerson in their capacity as attorneys for District 829. The mailed copy of this letter, received December 29, included a copy of portions of District 829's data practices policy. The letter offered some additional information. However, the major thrust of District 892's response was to offer argument for a variety of reasons as to why the Commissioner should decline to issue an opinion. The Commissioner's response to Ms. Davies' will be made below.



Issues:

In her request for an opinion, Ms. Kerr stated the issues as follows:
  1. Did ISD 829 or its attorney(s) violate the provisions of Minnesota Statutes Section 13.04, Subd. 3 by denying X's parent his full educational records within the timelines required by law?

  2. Did ISD 829 violate the provisions of Minnesota Statutes Section 13.04, Subd. 4 by failing to provide, under the timelines required by law, all of X's records once it was on notice that the parent considered the file provided to be incomplete?



Discussion:

Ms. Davies' reasons as to why the Commissioner should decline to issue an opinion are summarized as follows: This request is outside the Commissioner's jurisdiction because the questions involve the timing of data disclosure. She also maintains that there is no issue in controversy because ultimately X's parents received complete data on X. She maintains that Ms. Kerr is asking the questions for improper purposes, i.e. as an attempt to litigate a data practices issue or leverage an additional settlement. Lastly, Ms. Davies argues that the Commissioner should decline to issue an opinion because the facts of the case are much more complex than demonstrated by Ms. Kerr.

The Commissioner's response to Ms. Davies' arguments is as follows. The Commissioner is authorized to issue opinions when the person requesting the opinion disagrees with a determination regarding data practices made by an agency subject to the act in situations where the disagreement involves the person's rights as a data subject or right to have access to government data. (Laws of Minnesota, 1993, Chapter 192, section 38.) As the individual acting for her minor child, Y has the right under Minnesota Statutes Section 13.04, subdivision 3 to gain access to data about her child immediately or within five days of her request. Contrary to Ms. Davies' assertion, the timing of an entity's response to a request by an individual to exercise his or her rights is part and parcel of the assurance that those rights have meaning. This request for an opinion does involve the right of an individual to gain access to data within the time frames required by the Minnesota Government Data Practices Act, hereinafter MGDPA , and therefore is clearly within the authority of the Commissioner.

Acceptance of Ms. Davis' argument that the Commissioner should decline to issue an opinion because ultimately X's parents and their attorney got complete data about X would make a mockery of the rights conferred on individuals by the Act. The legislature imposed time frames in the MGDPA as an acknowledgement that the timing of a response may be not only critical to the data subject's exercise of his or her rights but may also be critical for other substantive reasons. Where the allegation is that the government entity took too long to provide the data requested, to fail to issue an opinion, on the basis that the data subject finally got the data sometime would seriously injure the legislative policy requiring prompt attention to a data subject's request for access.

Ms. Davies urges the Commissioner not to issue an opinion because, she argues, Ms. Kerr is trying to litigate a data practices issue in the wrong forum. The enforcement mechanisms in the MGDPA for almost all controversies between citizens and government entities are found in the remedy and penalty sections of the MGDPA, Minnesota Statues Sections 13.08 and 13.09. In enacting the opinion authority, the legislature did not change the basic enforcement mechanisms but did try to acknowledge the special expertise built up in the 20 plus years that the Department of Administration has worked with issues of government information policy. The legislature did this not only by giving the Commissioner the authority to issue opinions but also by directing the courts to give those opinions deference. (See Laws of Minnesota 1993, Chapter 192, section 38.) It can very well be that Ms. Kerr will, if this opinion is favorable to her clients, use the opinion as part of her argument in a court of law. There is absolutely nothing that is improper about her doing so and the legislature has acknowledged that role for the Commissioner's opinions.

Lastly, Ms. Davies argues that the Commissioner should not issue an opinion in this matter because not all of the facts have been provided to the Commissioner. This is a particularly ironic argument because District 829 was given notice of Ms. Kerr's request and afforded the opportunity to offer any information in support and explanation of what happened. Instead of offering information, the District now says the Commissioner should not issue an opinion because she does not have enough information. As she is required to do, the Commissioner will issue an opinion based on the information that has been presented to her.

In summary, Ms. Kerr's request is within the jurisdiction of the Commissioner and the other arguments raised by Ms. Davies are not persuasive that the Commissioner should decline to issue an opinion.

Issue 1:

Did District 829 and its various agents fail to provide Y access to X's education records within the timelines required by law?

The portion of the MGDPA that establishes rights for individuals, or, in the case of minors their parents, the right to gain access to all data maintained about them by a government entity subject to the MGDPA, is Minnesota Statutes Sections 13.02, subdivision 8 and 13.04, subdivision 3. In summary, these provisions say that the parent of a minor child acts as the data subject for the child under the MGDPA and that as a data subject the parent has a right to gain access to all private or public data about that child immediately upon the parent's request for access or, if immediate access is not possible, within five working days of the request. Access can mean either inspection of the data or receipt of copies of the data. What kind of access is provided is dictated by the nature of the request made by the data subject.

In this particular instance, Y stated her initial request very clearly. She asked, in writing, to receive copies of particular records but also copies of all other records about her son. This kind of request, delivered to a school district, is also regulated by the provisions of Minnesota Statutes Sections 13.32. This is the section of the MGDPA that specifically deals with data about students and declares that most data about students that is maintained by a school district or by a person acting for the school district is private data. Although in a school setting this kind of request may cause a school district to have to gather together a large amount of information, the request is a reasonable request under the MGDPA and District 829 should have, within five days of Y's request, either provided all of the educational data about X or informed Y that it needed an additional five days to complete the gathering of the data.

In response, District 829, on October 1, 1992, which is clearly within five days, sends an envelope of copies of data to Y that an agent for District 829 describes as all of X's and information that we [the District] have on file. Subsequently, Y's attorney learns that District 829 or its attorney may be maintaining additional educational data on X and asks for that data. In part as a response to that request but also as part of evidence disclosures required for a due process hearing, the District and its attorney agents make additional data available to the attorney for X's parents.

These copies of additional educational records were provided, according to Ms. Kerr, on October 20 and November 17, 1992. The October 20th disclosure is either 13 or 14 working days after Y's request depending on whether or not October 12, Columbus Day, was a holiday for District 829. The November 17th disclosure is either 32 or 33 days after Y's request depending on whether or not October 12 was a District 829 holiday and assuming the November 11, 1992, Veterans Day, was a holiday. Clearly, District 829, for the two additional disclosures that occurred after October 1, 1992, exceeded the five day period contemplated for a response by the Minnesota Government Data Practices Act provision on rights of subjects of data.

Issue 2:

Did District 829 violate the MGDPA by failing to provide all of X's records once the District was put on notice that Y considered the file to be incomplete?

In her full statement of this issue, Ms. Kerr cites to Minnesota Statutes Section 13.04, subdivision 4 which is a provision of the MGDPA that gives individuals the right to challenge the accuracy or completeness of data maintained about them by an entity subject to the MGDPA. This right to challenge data on the grounds of inaccuracy or incompleteness is a right distinct and separate from the right of a data subject to gain access to all public or private data maintained about him or her by a government entity. The purpose of Minnesota Statutes Section 13.04, subdivision 4 is to give people the right, once they have seen data that a government agency is maintaining about them, to challenge the content of that data on the grounds that the data in question is not accurate and/or not complete. The focus of the statutory language is on detailed data content or lack thereof, not on whether a given file or set of data is treated as being complete for purposes of an individual's access to that file. The rules of the Department of Administration bear out that emphasis on data content by defining complete to mean . . . that the data in question reasonably reflects the history of an individual's transactions with the particular entity. Omissions in an individual's history that place the individual in false light shall not be permitted . ( Minnesota Rules, Section 1205.1500, subpart 2.)

Ms. Kerr's communications to District 829 on the issue of completeness are all oriented toward trying to assure that she and her client received complete copies of all data maintained by the District about X. They are not communications that could reasonably be interpreted as challenges to the completeness of the content of the data maintained about X. District 829 should have been handling those requests as requests for access to the complete data about Eric in the sense of providing to Y or Ms. Kerr all educational data that the District and its agents was maintaining about X. The requests to receive complete data did not invoke any additional obligation for District 829 to act under Minnesota Statutes Section 13.04, subdivision 4.


Opinion:


Based on the correspondence in this matter my opinion of the issues is as follows:

As to issue 1, an alleged failure to provide educational data about X to his parent and his attorney, it is my opinion that District 829 failed to provide the requested data within the timeframes required by the Minnesota Government Data Practices Act. The District was required by Minnesota Statutes Section 13.04, subdivision 3 to provide the data immediately if possible, within five days if not possible or to give notice of the need for an additional five days within which to comply. After initially providing some data on the same day of the request, the District provided additional data between 13 and 33 working days later. Clearly this is not the response required by the MGDPA.

As to issue 2, an alleged failure to comply with Minnesota Statutes Section 13.04, subdivision 4 by not providing a complete file within the timeliness required, it is my opinion that Section 13.04, subdivision 4 deals with challenges to the content of data and not with requests for access to data and that none of the requests made by Y or Ms. Kerr invoked an obligation by District 829 to treat their requests as challenges to the completeness of data the District maintains on X.


Signed:

Debra Rae Anderson
Commissioner

Dated: January 4, 1994



Data subjects

Challenge accuracy and completeness of data

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