Facts and Procedural History:

On August 16, 1994, the Commissioner of Administration received a letter from X. In this letter, X described incidents involving collection, use and dissemination of data about his minor child by Independent School District Number 877, the Buffalo Schools and hereinafter District. It was X's opinion that certain practices of the District violated the rights of himself or his child under the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter Act or Chapter 13.

Specifically, X alleged the following. On April 26, 1994, X's child was involved in an incident in Buffalo High School that lead to the child being suspended from school and taken into custody by the Buffalo Police Department. X is the custodial parent of the child. According to X, the District informed the child and the child's noncustodial parent that in order for the child to be readmitted to school the child would have to undergo a psychological evaluation. Sometime after that, Dr. Michael DeSanctis, a psychologist in private practices began an evaluation of the child. According to X, Paula Dietz, the Buffalo High School psychologist sent data about the child to Dr. DeSanctis. (Note: X's request sometimes spells the doctor's name as DeSanctis and other times DeSancti. The former spelling is used here.)

On May 20, 1994, X received correspondence from Dr. DeSanctis who informed him that the child's evaluation was complete and a review of the evaluation would take place on June 6, 1994. On June 6, X met with Dr. DeSanctis and reviewed the doctor's findings and certain data provided by the District. As a result of that meeting, it was X's belief that the District had provided inaccurate and incomplete data to Dr. DeSanctis and that it had provided private data to Dr. DeSanctis without his consent.

On that same day, X went to the high school and asked to view all data about his child contained in any system of records. He made that request to Mr. Nick Miller, the high school's principal. On June 9, 1994, X met with Mr. Miller and examined the data provided to him. In his opinion, four specific items of information about his child, including information he had seen at Dr. DeSanctis' office, were missing from the data provided to him by Mr. Miller. Subsequently, X received copies of two of these items from Ms. Mary Loberg, an assistant principal. She also informed him that the District did not have a copy of one of the items and that he would have to request the other item from Dr. DeSanctis.

X then wrote to Mr. Miller expressing concern that the District had released data to Dr. DeSanctis without the consent of X. He asked Mr. Miller to provide copies of the consent forms that authorized the District to send data to Dr. DeSanctis. It appears that X never received copies of the consent forms. X also wrote to Dr. DeSanctis and asked him to provide copies of all data supplied to the doctor by the District.

On July 20, 1994, X received a letter from the Dr. DeSanctis. According to X, this letter informed him that the referral letter from the psychologist for the District might be a professional to professional consultation and without authorization from the other professional the letter could not be released to a third party. As to the other data requested by X, Dr. DeSanctis referred him back to the District.

After presenting the allegations summarized above, X asked the Commissioner to provide an opinion on the four issues that are summarized below in the Issues section. In response to this request, PIPA, on behalf of the Commissioner, wrote to Dr. Darrell Miller, Superintendent of Schools for the District. The purposes of this letter, dated August 19, 1994, were to inform Mr. Miller of X's request, to provide a copy of the request to him, to ask Mr. Miller to provide information or support for the District's position and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence to X and the District, the Commissioner notified them that she would be taking the additional 30 days allowed by opinion statute to issue this opinion.)

On August 30, 1994, via facsimile transmission, PIPA received a response from Ms. Ann R. Goering and Mr. Paul C. Ratwik, attorneys for the District. As they have on other occasions involving requests for opinions about the data practices of their clients, attorneys for the Ratwik law firm questioned the authority of the Commissioner to issue opinions that involves factual disputes. They also objected to the fact that the issues, on which the Commissioner asks for a response are, in most instances, an unedited statement of the issues recited by the citizen and those issues are sometimes stated in argumentative and emotional terms. The Commissioner has addressed the questions raised by the Ratwik firm in previous opinions and will not restate the details of her position here. Detailed support for the Commissioner's positions on the issues raised by Mr. Ratwik and Ms Goering can be found in those previous opinions.

Suffice it to say, the Commissioner believes she has the authority to issue opinions that involve factually disputed issues. She will consider all allegations and information provided to her and will, notwithstanding how a citizen states the issues in a request for an opinion, render an opinion that addresses the actual disagreement that appears to exist between the citizen and a government entity as she is required to do by the language of the opinion statute. (See Minnesota Statutes Section 13.072, 1993 Statutory Supplement.) If a governmental entity or its attorney chooses, out of concern for potential liability or other reasons, not to provide detailed information in its response, the Commissioner will still render an opinion. However, the government entity's silence will force the Commissioner to render an opinion based only on the citizen's view of the disagreement.

In addition to challenging the Commissioner's authority, the attorneys for the District also took the position that in order to respond they would have to restate the issues raised by X in what they called factually neutral terms, and that they would respond only to the issues as they restated them. In effect, this means that their responses do not address what did or did not happen in the incidents described by X. The District's 12 page response merely addresses, in abstract and neutral terms, the duties of government agencies and the rights of subjects of data. The following is an example of how the District responded to one of the issues raised by X.

X asked whether he had the right, under the Act, to inspect and copy data the District allegedly sent to a private psychologist. The District's response restated this issue as follows. First, the District asked the question: does Chapter 13 prohibit a school district from altering or disposing of government data. The District's response then answered that question in the negative. Next, the District asked the question: does the Data Practices Act require a school district to retain copies of data that it releases to a third party. The District also answered that question in the negative. Lastly, the District's response summarized the questions it restated and the answers to the questions as follows. A school district is not prohibited by the Act from altering or disposing of government data. A school district is not required to retain copies of data it releases to a third party. Therefore, a school district is not required to provide a data subject with copies of data concerning that subject in an instance where the school district disposed of and kept no copies of the data it sent to the third party.

In summary, the District's position on the issue raised by X is that a school district may generate data about a student and use that data in its decision making processes. A school district may send the data to third parties who are making decisions about the student. After using this data and sending it to others, a school district may dispose of the data and all copies of it and therefore have no data available to the parent of a student who seeks access to data concerning decisions made about his child by the school and third parties. However, as the District's response addresses this line of reasoning as only a possibility, the District's response does not directly address whether or not this was the sequence of actual events that lead the District, as alleged by X, to tell him that it no longer retained a copy of the data sent to Dr. DeSanctis.

Issues:

Discussion:

Issue 1.

Tennessen Warning is the popular name given to the Act's requirement that government entities, when they ask individuals to provide private or confidential data concerning themselves, inform those individuals of certain factual and legal information concerning the data the government seeks to collect. This requirement takes the form of a notice to the individual in which the individual must be told why the government is asking for data, whether or not providing it is legally required, what uses will be made of the data by the entity collecting it, the consequences to the individual of either providing or not providing the data and the identity of other persons and agencies, outside the entity collecting the data, that will have access to the data if the individual provides it. (See Minnesota Statutes Section 13.04, subdivision 2.)

X described situations in which the District discussed with his child, with himself and with the noncustodial parent the District's position that it would not readmit his child to school until the child had undergone a psychological evaluation. It is possible in these discussions that the school psychologist and the assistant principal asked the child or either of the parents to supply private data about the child to the District. (With very specific and limited exceptions, all data concerning a student collected or maintained or sought to be collected or maintained by school district or an agent of a school district are private educational data. See Minnesota Statutes Section 13.32.) If they did, that would trigger the requirement that the child or the parent be provided with a Tennessen Warning. However, if what occurred were discussions about a course of action in which the agents of the District did not ask the child or the parents to provide private data to them, the requirement that the District provide a Tennessen Warning would not be triggered.

The situation, as described by X, appears to be a situation in which what occurred was a general discussion of a course of action. If that was the case, the District was not required to provide the child or the parents with a Tennessen Warning and there was no violation of the right conferred on the child and the parent by Minnesota Statutes Section 13.04, subdivision 1.

Issue 2:

Chapter 13 does not directly regulate the ongoing retention of educational data by the District. Data retention by the District is the subject of a separate statute, Minnesota Statutes Section 138.17. This section of Minnesota Statutes and the sections that immediately follow it are commonly referred to as the Records Management Act. Under the Records Management Act, government entities, including school districts, must receive certain approvals before they can lawfully dispose, through destruction and other means, of government records. While the Commissioner has duties under the Records Management Act, issues involving whether or not a government entity improperly disposed of government records are, in most instances, outside the scope of the Commissioner's authority to issue opinions. However, it should be noted that improper destruction of government records may subject a government employee to a misdemeanor penalty. (See Minnesota Statutes Section 138.225.)

Minnesota Statutes Section 13.04, subdivision 3 gives data subjects and the parents of data subjects who are minors the right to gain access to private or public data maintained about the subject by a government entity. For data to be accessible, it must exist. In this instance, X has been told, according to him, that he cannot gain access to the Tracker Record because the District, after it sent a copy to Dr. DeSanctis, destroyed the original. Technically, it is not a violation of the rights of a data subject for a government entity to fail to provide access to data that the entity once maintained about that subject but has now destroyed. However, if the District destroyed the Tracker Record in response to X's request to gain access to it, this could be viewed as conscious attempt by the District to deny the right conferred by Minnesota Statutes Section 13.04, subdivision 3, and therefore a violation of the rights of X and his child.

X has not provided any data from which it could be reasonably concluded or inferred that the District did, in this instance, destroy the Tracker Record to negate X's rights under Section 13.04. X sought access to data that, according to the District, no longer existed. He did not provide information that establishes that the District destroyed this data in order to deny him his rights under Section 13.04. It cannot be concluded from the information provided that the District's failure to provide him with a copy of the Tracker Record was a violation of his rights.

Although this is a reasonable conclusion based on the information provided by X, the District's apparent position, that destruction of a student record is not prohibited by Chapter 13, does present other possible problems. Destruction of a record 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.) Also, destruction of a record 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. There are also possible problems with the Records Management Act as noted earlier.

In this issue, X also asked if Dr. DeSanctis' failure to allow X to inspect or copy the copy of the Tracker Record in the doctor's possession was a violation of X's rights under Chapter 13. X provided no information from which the Commissioner can conclude that Dr. DeSanctis was operating as an agent of the District. If the doctor is not an agent of the District and if he is not employed by an entity otherwise made subject to the Act, he is not subject to the requirements of Chapter 13. However, X's attention is called to the existence of Minnesota Statutes Section 144.335, the provision of Minnesota Statutes that gives individuals access to data maintained about them or their minor children by health care providers.

Issue 3:

Although the District's factual response admitted nothing about this issue, the District's response states as a generality a position that nothing in Chapter 13 requires a school district to keep copies of consent forms used to disseminate data outside a school district. As with the discussion of the previous issue, if a government entity chooses to destroy government data it once had and the subject of that data or the parent of a minor data subject seeks access to that data, the government entity is under no obligation to provide data that no longer exists. Although this may present issues under the Records Management Statute, it does not appear to be a violation of the rights of a data subject under Section 13.04 unless, as discussed in the previous issue, it can be established that government entity destroyed the data for the express purpose of denying a data subject access to the data.

The District's position on this issue, or what can reasonably be inferred as the District's position on this issue is very puzzling. It would always seem to be in the best interest of a government entity, that has released private data to a third party because the data subject has given written consent to that release, to keep copies of the consent forms for an extended period of time. The signed consent form or authorization is the entity's best defense if the data subject should ever allege that the entity improperly released private data to the third party. In this instance, the District appears to be saying that either X has misstated what happened or that it no longer stores the consent forms and therefore has no obligation under Section 13.04, subdivision 3 to provide access to them.

Issue 4.

Private data about an individual can be released to others with the written consent of the individual data subject. (See Minnesota Statues Section 13.05, subdivision 4 and Minnesota Agency Rules Sections 1205.0400 and 1205.0500.) In the case of an individual data subject who is a minor, the individual who has the right to consent to the release of data includes both the minor child and the parents of that child. (See Minnesota Statutes Section 13.02, subdivision 8.) Agencies that allow minor individuals the full exercise of their rights under the Act normally will consider the actual age and maturity level of the minor before deciding that the child can fully exercise his or her rights under Chapter 13. In the case of child whose parents are divorced, either parent has the right to consent to the release of data about the child unless the other parent has provided the government entity, that holds the data, with some kind of legally binding instrument such as a court order that says only one of the parents can access data or consent to its release. (See Minnesota Agency Rules Section 1205.0500, subpart 3.)

It appears from the information provided by X and the actual content of his statement of this issue, that a consent for release of data about his child to Dr. DeSanctis may have been given either by his child or by the child's mother. If that is the case, he argues that only he, as the custodial parent, ought to be able to release data about his child to others. He has not provided any information that would indicate the child's mother has been legally disqualified from exercising her rights under Chapter 13 or that the maturity level of his child is impaired in such a way that the District ought not, if it did, honor a consent from either the child or his mother. If the District released data with the written consent or either the child or the mother, it did not violate X's rights under Chapter 13.

Opinion: