November 29, 1993; Minnesota Department of Education
11/29/1993 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 November 4, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja Kerr who is the attorney for X, a minor, and her parents. X's parents are involved in a controversy with Independent School District Number 281 that is the subject of a separate opinion being issued with this opinion.Ms. Kerr recited a history of requests made to the School District Number 281 relative to access to data and other issues related to the Minnesota Government Data Practices Act (hereinafter MGDPA ). She also stated that in a letter dated August 26, 1993, she requested from the Minnesota Department of Education, hereinafter Department of Education or Department , a closed investigative file involving a previous complaint X's parents had made about School District Number 281. The copy of this letter she provided carried a date stamp indicating that the letter was received on August 27, 1993, in the office of the Commissioner of Education. The letter asked for a complete copy of the file and identifies it with file's complaint number of File Number 389. Enclosed with Ms. Kerr's request letter was an authorization for a release of information, signed by X's mother, authorizing the release to Ms. Kerr of any and all reports, evaluations, letters and school records of any kind. Ms. Kerr stated that no response was received from the Department of Education about this requests until, during the course of an administrative hearing involving another complaint made by X's parents against District Number 281, an administrative law judge issued a subpoena for the closed file. Ms. Kerr enclosed a copy of this subpoena that was directed to Barbara Stillwell, a complaint investigator at the Minnesota Department of Education. The subpoena directs Ms. Stillwell to provide the complete copy of the file involving Complaint Number 389. Ms. Kerr provided a copy of a statement signed by Ms. Adele Ciriacy, an employee of the Minnesota Department of Education, that indicates that Ms. Ciriacy personally hand delivered File Number 389 to Ms. Kerr on September 28, 1993. Ms. Kerr then asked the Commissioner of Administration to issue an opinion concerning the delay experienced by X's parents in getting access to File Number 389. In response to Ms. Kerr's request for an opinion, PIPA, on behalf of the Commissioner, wrote to Linda Powell, Commissioner of the Minnesota Department of Education. The purpose of this letter, dated November 9, 1993, was to inform the Department of Ms. Kerr's request, to acquaint the Department with the Commissioner of Administration's authority to issue opinions, to ask the Department or its attorney to provide any information to explain the actions taken or not taken and to inform them of the date on which the Commissioner was required to issue this opinion. On November 29, 1993, PIPA received a letter, dated November 19, 1993, from Robert Wedl, an Assistant Commissioner with the Department. In his letter, Mr. Wedl questioned the Commissioner's authority to issue an opinion in a situation like this and offered some arguments relative to that question. In addition, Mr. Wedl offered by way of explanation that a variety of factors delayed a response to Ms. Kerr's request. Those factors included a need to review the file to redact information about students other than X, the absence of staff responsible for responding who were performing other duties and the fact that the division that held the file within the Department is without a director.
Issue:
In her request for an opinion, Ms. Kerr stated the issue involving the Department of Education as follows:
Discussion:
Before offering an opinion on the specific issue raised by Ms. Kerr, the basic question of the authority of the Commissioner in this matter, as raised by Mr. Wedl, must be addressed. The plain statement of that authority, as it relates to requests from individuals for opinions, is found in the 1993 enactment. Chapter 192 states: Upon request of any person who disagrees with a determination regarding data practices made by a state agency, statewide system or political subdivision, the Commissioner may give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. (Minnesota Session Laws 1993, Chapter 192, Section 38.)
In her request for an opinion, Ms. Kerr asked the question that is replicated as the Issue statement above. This issue involves a question of X's parents' rights and the Department's actions relative to Minnesota Statutes section 13.04, subdivision 3. Section 13.04 is the part of the MGDPA that is captioned Rights of Subjects of Data . The right afforded by this particular subdivision is the right of an individual, or in the case of a minor the individual's parents, to gain access to all private or public data maintained about that individual by an entity subject to the MGDPA within certain time frames mandated by the MGDPA. It is the view of X's parents that the Department did not take certain actions required by the MGDPA within the timeframes dictated by the Act and that those actions involve a data practices determination impacting on their rights under Minnesota Statutes Section 13.04. There appears to be no argument that the Department and its data practices are regulated by the MGDPA. The Commissioner agrees with X's parents that this is a question of involving the data practices of the Department and certain rights of X's parents when their daughter is the subject of data maintained by the Department and it is appropriate for the Commissioner to issue an opinion. Mr. Wedl's arguments about the Commissioner's authority urge the Commissioner to adopt a narrow view of that authority. Mr. Wedl's chief objection seems to rest on the concern that the Commissioner is being asked whether the actions of an entity subject to the MGDPA constitute a violation of the MGDPA. Many of the questions that can be asked of the Commissioner under this new authority will implicitly or explicitly lead to a conclusion, based on the facts relied on by the Commissioner in issuing an opinion, that a violation of the MGDPA may have occurred. The Commissioner is of the opinion that refusing to issue opinions in situations like that would lead inevitably to a situation of issuing no opinions whatsoever because virtually all opinions requested by individuals could be interpreted as a finding that an agency violated the MGDPA. It is the Commissioner's opinion that the legislature conferred sufficient authority on her to issue these types of opinions. Her opinions are by their nature conditional on the facts and information presented to her by the government entity and the data subject. To the extent that a Commissioner's opinion becomes at issue as part of a lawsuit, no court is bound to adopt all or part of a Commissioner's opinion. Under the terms of the authority conferred by the legislature, courts are only asked to give deference to the Commissioner's opinions, they are not directed to surrender their fact finding authority to the Commissioner or to automatically accept that if the Commissioner determined on the facts provided to her that there may have been a violation of MGDPA that an actual violation did occur. To the extent that a court finds the Commissioner's opinions helpful because of the special expertise of the Department of Administration in data practices matters, it is free to use that expertise. To the extent that a court finds that the Commissioner's opinion rests on incomplete or incorrect facts, the court will obviously be free to find its own facts. Ms. Kerr's request asked whether the Department violated certain requirements of the MGDPA relative to the timing of a response for access to data made by a data subject. Although an argument could be made that Ms. Kerr's request could be viewed as something other than a request made pursuant to Minnesota Statutes Section 13.04, the Department seems to concede that this is the section under which her request was made and that section provides the framework for determining what actions of the Department were required once Ms. Kerr's request was received. Minnesota Statutes Section 13.04, Subdivision 3 is the section that states the rights data subjects have to gain access to data maintained about them. Minnesota Statutes Section 13.04, subdivision 3 provides that, upon his or her request, a data subject must be provided with access to public or private data concerning that subject. The subdivision goes on to state that the responsible authority shall comply with a data subject's request for access ...immediately, if possible, ... or within five days of the request, excluding Saturdays, Sundays and legal holidays if immediate compliance is not possible. The subdivision goes on to state that a responsible authority may gain an additional five days to comply with a request if the responsible authority cannot, for good reason, comply within the first five days, by informing the data subject of the need for additional time. This five day requirement covers both requests to inspect and requests to receive copies of data. Both X's parents and the Department appear to agree that File Number 389 was, at the time Ms. Kerr's request was filed with the Department, a closed investigative file maintained by the Department and containing private educational data concerning X. Ms. Kerr's request for that file was received by the Department on August 27, 1993. The file was delivered to Ms. Kerr on September 27, 1993. It was delivered only after an administrative law judge's subpoena, requiring production of the file, was served on the Department. When a request for receipt of copies of private data is made within the provisions of Section 13.04, subdivision 3, the MGDPA imposes certain obligations on the government entity to assure that the rights established by the provision are actualized. The government entity is required to provide the copies requested immediately. If immediate compliance is not possible, the entity is required to provide the copies within five working days. If the entity cannot comply within the first five working days, and it informs the individual of its inability to comply, the entity gains an additional five working days within which to comply. In summary, once it receives a request to provide copies of private data, the entity is required by Section 13.04, subdivision 3 of the MGDPA to provide the copies within five days. In this instance, the time interval occurring between receipt of Ms. Kerr's request and delivery of the copy of the file to her was 20 working days. At no time in the initial five day period did the Department indicate to Ms. Kerr that the Department was encountering some difficulty in making the copy available. Although by so doing, the Department could have gained an additional five days within which to reply, for some reason it chose not to do so. Mr. Wedl's November 19,1993, letter offers a variety of reasons why the Department did not respond within the five to ten day period required by Minnesota Statutes Section 13.04, subdivision 3. None of these reasons were communicated to Ms. Kerr within the first five days of her request. The MGDPA requires compliance with a request for copies, and other requests made under Section 13.04 subdivision 3, within five to ten days. This has been a requirement of MGDPA since 1977. (See Minnesota Session Laws 1977, Chapter 375.) In addition to the clear statement of this requirement in Section 13.04, the MGDPA and its implementing rules also require District 281 to prepare and follow written procedures to assure and assist compliance with Section 13.04, subdivision 3. (See Minnesota Statutes Section 13.05, subdivision 8 and Minnesota Agency Rules Section 1205.0400.) Once the Department received Ms. Kerr's initial request, it knew or should have known that to be able to comply within five days, it would have to review an extensive file to determine if there were data about students other than X contained in the file and to assign staff as necessary to carry out its responsibilities under the MGDPA. Given the staffing problems described by Mr. Wedl, the Department could have, before September 3, 1993, described those problems to Ms. Kerr and gained until September 13, 1993 to comply. The Department chose not to do so. Instead, the Department provided the file on September 27, 1993. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Ms. Kerr is as follows:
Signed:
Debra Rae Anderson
Dated: November 29, 1993
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Response to data requests
Data subjects
Commissioner of Administration
