November 29, 1999; University of Minnesota
11/29/1999 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.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On October 5, 1999, IPA received a letter dated September 29, 1999, from Rebecca Hamblin, on behalf of her client, the University Education Association (UEA), the exclusive representative for faculty employed at the University of Minnesota - Duluth (UMD). In her letter, Ms. Hamblin asked that the Commissioner issue an opinion regarding her client's access to certain data maintained by UMD. IPA, on behalf of the Commissioner, wrote to Tracy Smith, Associate General Counsel for the University, in response to Ms. Hamblin's request. The purposes of this letter, dated October 6, 1999, were to inform her of Ms. Hamblin's request and to ask her to provide information or support for the University's position. On November 2, 1999, IPA received a letter dated October 29, 1999, from Mary Ann Bernard, Associate General Counsel for the University. A summary of the facts is as follows. In a letter dated February 12, 1999, staff of UEA made a data request on behalf of one of its members who is an employee of UMD. Attached to the letter was a copy of a release signed by the UMD employee. The release included the following language: I hereby request copies of any and all documents in the possession of the University of Minnesota which are classified as public or private pursuant to [Chapter 13] in which I am the subject of the data pursuant to [section 13.04, subdivision 3]. Also in his/her release, the data subject authorized UMD to release the data to UEA staff. In a letter dated February 25, 1999, UEA staff again requested access to the data. He wrote: At this point I have not received any information or any request for an extension of the state mandatory timeline pursuant to [section 13.04, subdivision 3]. The University must comply immediately or at the most within five days. It has now been over a week. In a letter dated March 5, 1999, UEA staff again requested access to the data. In a letter dated March 15, 1999, UMD sent a letter to UEA staff. In relevant part, the letter states: We have the documents you have requested. They number approximately 1,200-1,500 pages. I have not completed the task of reviewing them to redact non-relevant information, especially e-mails that contain information on other individuals. If you would like to review the documents prior to deciding on whether or not you want copies, please call [staff] in our office, and she will arrange a time to do so. In her opinion request, Ms. Hamblin wrote that UEA staff was able to review about one-half of the 1,200 to 1,500 pages of materials and that UMD has not yet informed UEA that the remaining materials are available. Issue:In her request for an opinion, Ms. Hamblin asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.04, a data subject is entitled to inspect or obtain copies of government data of which s/he is the subject. Subdivision 3 of section 13.04 states that the government entity must allow inspection or provide copies immediately or within five working days. If the entity is unable to respond within the first five days, it must so notify the requestor and may then take an additional five working days to respond. (The Commissioner notes that as of August 1, 1999, section 13.04, subdivision 3, states that a government entity must respond immediately or within ten working days. The language requiring notification after five days no longer exists. See Minnesota Laws Chapter 227, section 2. However, in the case of this opinion, because the data request was made prior to August 1, 1999, the old statutory language applies.) UEA made its initial request for data on February 12, 1999. Twenty working days later, UMD responded by advising UEA that UMD had located the relevant documents but that redaction of private data in those documents had not yet been completed. Further, as of the date that Ms. Hamblin submitted her opinion request, UEA staff had been able to inspect only approximately one-half of the documents in question. Ms. Hamblin wrote, [UEA staff] has never been informed that the remaining materials are available for his review. In her comments to the Commissioner, Ms. Bernard wrote: It is the University's position that its response has been appropriate....There is no allegation that [the UMD employee] has been denied access to [his/her] personnel file or any other similar document. At issue instead are all the e-mails contained on University servers that mention [his/her] name. At its insistence, UEA's representative was able to review approximately one-half of the 1200 - 1500 pages of such materials (with names and identifiers of University students and other University employees redacted in early March. UEA's suggestion that it had a right to obtain these e-mails within the ten-day statutory timeline is without legal basis. This right exists only when the individual is the subject of stored data. Typically, [the UMD employee] is one of many subjects of this data. Neither the statute nor the regulations contain a ten-day time limit, or any other time limit, in a situation where substantial redactions are necessary in order to delineate the private data on one individual from the private data on others in documents which have multiple data subjects. Ms. Bernard added that since receiving notice that UEA wants to review the remaining data, UMD has been redacting the remaining e-mails. She stated that the redacted copies would be available to UEA the week of November 1, 1999. The Commissioner respectfully disagrees with Ms. Bernard. On behalf of one of its members, UEA requested all data - regardless of where or in what documents the data exist - that UMD maintains about this person. Pursuant to section 13.04, subdivision 3, UMD was required to respond, i.e., provide access to the data, immediately or within five to ten working days. This did not happen. UMD took approximately twenty days to send a letter advising that the data had been located but were not yet ready for inspection or copying. Further, when Ms. Hamblin submitted her opinion request, UEA had not yet gained access to the remaining data. UMD did not meet its requirements under section 13.04 and should immediately provide UEA with access to the remaining data if it has not done so already. Further, Ms. Bernard seems to suggest that the access rights section 13.04 confers upon a data subject do not apply to situations in which the documents, e.g., e-mail, etc., contain data about the data subject as well as data about other individuals. The Commissioner again respectfully disagrees. Section 13.04 entitles individuals to gain access to data of which they are the subject, regardless of the type of medium containing the data or the fact that the medium contains data about the data subject and other individuals. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Hamblin is as follows:
Signed:
David F. Fisher
Dated: November 29, 1999 |
Multiple data subjects
Multiple data subjects
