February 16, 1994; School District 276 (Minnetonka)
2/16/1994 10:14:43 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.
Facts and Procedural History:On January 13, 1994, the Public Information Analysis Division (PIPA) received a request for an opinion from Ms. Sonja D. Kerr, the attorney for X, a student in the Minnetonka Schools, and his parents. In subsequent correspondence involving PIPA, Ms. Kerr and Mr. William Kelly, attorney for the Minnetonka Schools, Ms. Kerr, in a letter dated January 24, 1994, raised additional issues, that went beyond her initial request, and asked for a Commissioner's Opinion on those issues. PIPA determined that those issues should be the subject of a separate opinion and notified Superintendent Draayer of the Minnetonka Schools of that determination in a January 28, 1994, letter sent to the superintendent and copied to Ms. Kerr and Mr. Kelly. This letter also requested comments from the Minnetonka Public Schools, hereinafter Minnetonka , or its attorney on the issues raised by Ms. Kerr and for copies of policies and procedures of Minnetonka relating to student record retention and destruction. The letter also informed Minnetonka and Ms. Kerr of the date by which this opinion was required to be issued.As part of the discussion about these issues, PIPA received several items of correspondence from the Kelly law firm and Ms. Kerr, including copies of correspondence they directed to one another. On February 9, 1994, PIPA received a letter from Mr. William Kelly that made direct comments about the issues raised by Ms. Kerr in her January 24, 1994, letter. In her January 24, letter, Ms. Kerr stated that although a large number of documents involving X as a subject of data had been provided to her on December 15, 1993, that a certain psychological report concerning X and prepared by Ms. Mary Nelson, had not been part of the documents provided. Ms. Kerr stated that X's parents had first requested a copy of the original version of this report in a letter dated October 6, 1993, and sent to Milan Nelson, director of special education of Minnetonka. Ms. Kerr provided a copy of this letter. In this letter, X's father summarizes a conversation that he had with Mr. Nelson on the morning of October 6. He writes: In our conversation, I reiterated our request for the original version of Mary Nelson's report which I had not seen but was read by my wife during a file review of X's folder in Linda Saukkonen's office. Ms. Saukkonen is the principal of the school X was attending. (This particular report had been the subject of discussion between X's parents and Minnetonka and it appears that there was a decision to rewrite the original version of this report. As a result of this decision, X was the subject of two versions of a psychological report prepared by Ms. Nelson. Both versions are dated June 6, 1992, and carry a case number of 6061. The original version includes a sentence in the last paragraph of the last page that has been removed from the edited version. For purposes of clarity, the version that includes this sentence is referred to in this opinion as the original version . The version that does not include the sentence is referred to as the edited version .) Ms. Kerr also provided a copy of a letter dated October 13, 1993, from Mr. Nelson and received by X's parents. In this letter Mr. Nelson indicated enclosure of various items of data that he was providing in response to X's father's telephone request on October 7, 1993. The letter goes on to state the psychological report done by Ms. Mary Nelson dated June, 1992, . . . is not available in my folder or in the building. Mr. Nelson goes on to say that he had a conversation with Ms. Nelson and she told him she had destroyed the original version of the report and had not provided Mr. Nelson with a copy of the original before it was destroyed. In conclusion, Mr. Nelson stated: Therefore, we do not have a copy of the June 1992 psychologist report available to send. Ms. Kerr went on to state that after she received the documents on December 15, 1993, X's mother had reviewed all of the data provided by Minnetonka. X's mother had noted a copy of the edited version of Ms. Nelson's report had been provided but not a copy of the original version. Ms. Kerr pointed out that in a January 20, 1994 letter that Mr. William Kelly sent to PIPA, he stated that a copy of the original version was provided to Ms. Kerr on December 15, 1993. Ms. Kerr also provided a copy of a letter she had sent to the Kelly law firm that expressed concern about Minnetonka's alleged destruction of the original version of this report. Following this discussion of the attempts by herself and her clients to get access to the original copy of this report, Ms. Kerr asked the Commissioner to issue an opinion on the three issues replicated below. These issues all revolve around the handling of the original version of the report by Minnetonka. In response to Ms. Kerr's request, PIPA wrote to Dr. Draayer and Mr. Kelly as described above and asked for Minnetonka's response to Ms. Kerr's request. On February 9, 1994, PIPA received a letter of response from Mr. William Kelly. Mr. Kelly commented on the three issues raised by Ms. Kerr as follows. On the issue of whether the destruction of the original version of the report would constitute a violation of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA , Mr. Kelly stated the fact of the matter was the original version had not been destroyed. At some point a copy of the original version was forwarded, without Mr. Nelson's knowledge, to a Ms. Bev Mongomry, who is the coordinator for special education for Minnetonka. According to Mr. Kelly, Mr. Nelson's statements to X's parents, in his October 13, 1993, letter, that the original version was not in his files and that the original version was destroyed, were true as to the knowledge possessed by Mr. Nelson. On the issue of whether the fact that Minnetonka informed X's parents that the original version had been destroyed when it had not been destroyed was a violation of the MGDPA, Mr. Kelly stated that when a copy of the original version of the report was discovered in Ms. Mongomry's files, a copy of the original version was provided to Ms. Kerr on December 15, 1993. At this point in his response, Mr. Kelly added a series of comments and arguments to the effect that Ms. Kerr had been incorrectly directing requests for access to data to him instead of to the superintendent of Minnetonka. He then cited arguments as the basis for a request for the Commissioner to reconsider the opinion issued February 2, 1994. On the last issue of whether, in Ms. Kerr's view, Minnetonka's failure to actually provide a copy of the original version of the report, in the documents delivered to her on December 15, 1993, was a violation of the MGDPA, Mr. Kelly commented that the original report was included in the documents delivered on December 15. He stated he had personally reviewed the materials and . . . noted the inclusion of both the original report and the corrected report.
Issues:
In her request, Ms. Kerr asked the Commissioner to address the following issues in this opinion:
Discussion:
First, as noted above, Mr. Kelly included in his remarks on the issues raised by Ms. Kerr some arguments and a request that the Commissioner reconsider the opinion she issued on February 2, 1994, concerning X's parents and their access to data about their son at Minnetonka. Essentially, Mr. Kelly has added some arguments concerning the issue dealt with in the February 2 opinion. The simple fact is he could have made those arguments when Minnetonka was given an opportunity to respond to Ms. Kerr's initial request involving Minnetonka. He did not do so. In addition, there is nothing in his arguments that would lead the Commissioner to conclude that her previous opinion was in error. Mr. Kelly argues he was the wrong representative of Minnetonka for Ms. Kerr to contact to gain access to data about her client. At the time he received her request, he could have informed her of that fact and directed her to the Minnetonka superintendent. Instead, he chose to move forward to handle her request as if he were the proper representative to contact.
As to the first issue raised by Ms. Kerr, relating to an alleged violation of the MGDPA if Minnetonka had destroyed the original version of Ms. Nelson's report, Mr. Kelly's point that the actual fact is that the original version of the report was not destroyed is well taken. However, the discussion of this issue in the correspondence between X's parents and Minnetonka seems to indicate that Minnetonka was not aware of any problem if indeed the report had been destroyed. For educational purposes, Minnetonka should be aware that destruction of a report like this could have implications for it under the MGDPA and other laws. For example, if there were an outstanding request by a parent to have access to a report on their minor child and a government entity destroyed that report, the destruction could be viewed as a violation of the provision of the MGDPA that give data subject's access to data about themselves. (See Minnesota Statutes Section 13.04, subdivision 3.) Destruction of a report could have implications for a government entity's obligations to keep data on individuals accurate, complete and current. (See Minnesota Statutes Section 13.05, subdivision 5.) Destruction of a report like this by a government entity, without an approved retention schedule, could have implications for that entity under Minnesota Statutes Section 138.17, the state's Records Management Statute . Lastly, destruction of this kind of report by a school district could have implications for the district under federal law and especially the provisions of the Family Educational Rights and Privacy Act (20 U.S.C. 1232g) and its rules. In her second issue, Ms. Kerr asks whether Minnetonka's failure to provide a copy of the original version of this report to X's parents until December 15, 1993, is a violation of the MGDPA. (Ms. Kerr indicates in her statement of the issue that she is willing to accept, for purpose of argument, that a copy of the original version was provided to her on December 15, 1993. This portion of the opinion will therefore assume that a copy of the original version was provided to X's parents attorney on December 15, 1993.) In their October 6, 1993 letter, X's parents, among other items, specifically asked for a copy of the original version of this report. In his reply to them, Mr. Nelson stated he did not have a copy of the report, there was no copy in the building and that Ms. Nelson had told him she had destroyed the original version after preparing an edited version. Subsequently, on December 15, 1993, approximately 48 working days, depending on the exact computation of what days in October, November and December that Minnetonka took as holidays, a copy of this report was made available to X's parents through their attorney. Mr. Kelly's comment explains that the original version was discovered in Ms. Mongomry's files so it was also included in the December 15 submission to Ms. Kerr. He points out that Mr. Nelson's response to X's parents was correct in the sense that Mr. Nelson believed that the original version had been destroyed. (In his response, Mr. Kelly actually stated that Mr. Nelson made his comments to X's parents in a September 20, 1993 letter. Those remarks were actually made in Mr. Nelson's October 13, 1993, letter to X's parents.) Given the overall correspondence presented to the Commissioner, it seems clear that Minnetonka, acting through its agent Mr. Nelson, had communicated to X's parents that data they were seeking on their son was indeed available from Mr. Nelson. At any time, Minnetonka could have indicated to X's parents that Dr. Draayer was the responsible authority for purposes of the MGDPA and they should direct all inquiries to him. By doing so, Minnetonka could have assured a complete response to X's parents' request and hopefully, if Minnetonka has prepared and implemented the various policies and procedures required by the MGDPA and its implementing rules, could have avoided providing data to X's parents 48 days after their request when they had the right, under Minnesota Statutes Section 13.04, subdivision 3 to receive the requested data within five days. It is a part of modern reality that school districts and other government institutions often generate large volumes of data on their students and clients. In this case, Minnetonka's data on X totalled more than 600 pages of materials. The MGDPA and its implementing rules establish a legal reality that assumes that government agencies will develop and put into effect a variety of policies, procedures and will identify and assign responsibilities which, when taken together, should allow a government entity to respond to requests and stay within the time frames required by the MGDPA. Once X's parents were told, either through communication or actions of Minnetonka, that Mr. Nelson was the person to whom they should direct requests for access to data about their son, they had the right to expect that he would respond to their request in a timely and complete fashion. At least one copy, or even the actual original, of the version of the report they were seeking was held in the files of Minnetonka at the time they made their request. It should have been provided to them within five days. In her last issue, Ms. Kerr asks that the assumption that she was willing to accept for purposes of issue number two, that a copy of the original version of the report was delivered to her on December 15, not be assumed. She then asks if Minnetonka is in violation of the MGDPA for not providing a copy of the original version. Whether or not, a copy of the original version was provided on December 15 is a matter of dispute between Mr. Kelly and Ms. Kerr. Mr. Kelly states that he took note, when reviewing the materials prior to their being delivered to Ms. Kerr, that both the original and edited versions were in the stack of materials. He did not provide an inventory of the materials sent to Ms. Kerr. Ms. Kerr states that X's mother reviewed all of the materials on December 17, and did not see the original version. Written notes made by X's mother during her review and provided by Ms. Kerr are not clear on whether one or two versions of this report were provided. It is clear that in the correspondence exchanged by Mr. Kelly and Ms. Kerr relating to this opinion that on January 31, 1994, Ms. Kerr acknowledged receipt of copies of two versions of the report mailed with a January 28, 1994, letter from Mr. Kelly. The effect on the obligations of Minnetonka, under the MGDPA, of the receipt of the copy by Ms. Kerr on December 15, 1993, has been discussed above. If Ms. Kerr in actuality did not receive the copy until January 31, 1994, then the effect of that fact under the MGDPA would be that additional days would be added to the period of time in which Minnetonka failed to respond to the request. However, the information provided by Ms. Kerr and Mr. Kelly does not lend itself to reach a complete conclusion either way. Opinion:
Signed:
Debra Rae Anderson
Dated: February 16, 1994
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Records management/retention
Data destruction
