Discussion:

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:

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:

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: