Issues:

Discussion:

Section 13.04 provides certain rights to individuals who are subjects of government data. One of those rights is the right to gain access to the public and private data about oneself that are maintained by a government entity. Section 13.04, subdivision 3 provides:

Pursuant to Section 13.04, subdivision 3, a government entity must provide a data subject with access to the public and private data it maintains about that individual within five working days of the date of the request, if immediate compliance is not possible. The government entity, upon notice to the individual, may have an additional five working days within which to comply with the request.

The first issue, whether the District provided D with copies of personnel data within the time frame required by statute, is complicated by Mr. Nickitas's own actions. Mr. Nickitas, in his original request, granted the District more than five working days to respond. Assuming that a letter mailed on September 11th would reach the District on September 13th, the District then, to meet the five-day requirement, needed to comply with the request by September 20th. However, Mr. Nickitas granted the District seven days to comply, by asking for the data by September 22nd. In addition, he accepted Mr. Colosimo's statement that he would be out of his office as a timely request for an extension of five working days, pursuant to Section 13.04. Technically, it was not a proper notice under that Section. In any event, Mr. Nickitas agreed to a five-day extension beyond the date he originally designated, from September 22nd to September 29th. The District mailed the copies on October 3, two working days after September 29th. Technically, the District violated D's rights under Section 13.04, by failing to provide the data by September 29th. However, there are other issues raised in Mr. Colosimo's response that require some discussion.

In his response, Mr. Colosimo suggests that the District's delay in providing the data beyond the five-day requirement is Mr. Nickitas's responsibility, not the District's, because of the District's uncertainty about the validity of the authorization submitted by Mr. Nickitas. Mr. Colosimo said that the District was . . . concerned about the lack of particularity and specificity of the 'Authorization' in that it was not specifically directed to the school district, did not make specific mention of Data Practices, only generally talked about (what might be considered to be) private data, and contained an unnotarized signature. Mr. Colosimo further stated that although he did not communicate this to Mr. Nickitas, it was his own responsibility to . . . determine whether, in fact, [D] was intending this be directed to private data on [D] kept and stored by the school district.

Mr. Colosimo also stated that he continues to be uncertain with respect to the validity of the authorization. In addition, he stated . . . it must be remembered that the individual who is the subject of the stored data was not making the request, but in fact, an attorney claiming to represent this individual . . . . At no time was there a specific and clear written or oral request made by the subject of the data . . . .

Mr. Colosimo enclosed a copy of the authorization which he said was provided to the District by Mr. Nickitas. It describes various data to which Mr. Nickitas was entitled access, including medical data, motor vehicle accident reports, and . . . any and all information or reports he may request; and further permit him to inspect and/or obtain any and all personnel records, job history, and complete wage records. (Emphasis added.)

If Mr. Colosimo was unable to accept the authenticity of the authorization, he should have communicated that to Mr. Nickitas immediately. Failure to do so is not an acceptable basis upon which to blame a delay in providing access to the data as required by statute.

Mr. Colosimo did not provide a copy of the policies and procedures the District has established, pursuant to the requirements of Section 13.05, subdivision 8, and Minnesota Rules Part 1205.0400, subpart 3, to ensure that the District provides appropriate access to the data it maintains. Those procedures should contain directions for dealing with a situation in which the District is not comfortable with an authorization such as the one provided by Mr. Nickitas. Perhaps the District needs to review its procedures to ensure that it does not delay in its provision of proper access to its data on the basis of discomfort over the validity of such an authorization.

Mr. Colosimo offered further justification for the District's delay in providing the data, which also requires comment. He stated I reiterate that this is, at least, the third time that this information has now been provided [D or D's] representative in the last 6 to 7 months. If that is indeed the case, then the District had a choice to make at the time it received Mr. Nickitas's request.

Pursuant to Section 13.04, subdivision 2, once a data subject gains access to the private data maintained by a government entity, . . . the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. Therefore, had it chosen to do so, the District could have invoked that provision as its basis to deny Mr. Nickitas access to data on D. If Mr. Colosimo intended to rely upon that provision, he should have communicated that immediately to Mr. Nickitas, upon receipt of his request. However, Mr. Colosimo did not exercise that option. Failure to do so removes that provision as an acceptable basis upon which to make a subsequent argument that access to the data need not be provided as required by statute.

Mr. Colosimo also asserted that Mr. Nickitas could have gained access to the same data from D or another of D's representatives, and if so, . . . the district need not then concern itself with the vagueness of the 'authorization' and the uncertainty of [D's] signature. However, the District has an obligation to provide data subjects with access to the public and private data it maintains. That D may have gained access to the data from another source in no way relieves the District from its obligation to provide D with proper access to the data it maintains.

In his response to Issue 2, Mr. Colosimo stated that Mr. Nickitas did not request copies of the minutes of any particular school board meetings, but had he done so, the District would have been happy to provide them.

In his initial data request, Mr. Nickitas specified certain data (e.g. performance evaluations) and also requested copies of any and all other written notes, memoranda, or records . . . of which [D] is a subject or thesubject. (Emphasis his.) The fact that Mr. Nickitas did not specify particular school board meeting minutes may offer a practical problem. Practically speaking, it is not reasonable to expect a government entity, in response to a request for data on a particular individual, to research all of the meeting minutes it maintains in the off-chance that there may be data about that individual in some of the minutes.

However, the District is obliged to make a reasonableresponse to D's request, and is obliged to provide D with access to the data it maintains about D, regardless of where or in what form the data reside. (See Commissioner's Advisory Opinion 94-034.) In other words, if D were the subject of a part of a school board meeting, then the minutes of the meeting that reflect discussion about D, constitute data about D, and must be made available to D. In this case, the personnel matter involving D appears to be on-going, and therefore it is not unreasonable for D or D's representative to expect that data about D contained in recent school board meeting minutes would be fairly easily identifiable to the District as containing data about D.

Mr. Colosimo further stated however, [school board meeting minutes are] subject to Minn. Stat. 13.03, Subd. 3 . . . in other words, it is not governed by the 5 day requirement which relates to private data on individuals,

when requested by the individual who is the subject of the data.

Further, in his emphasis

when requested by the individual who is the subject of the data,

Mr. Colosimo suggests that a government entity need not respond to a data access request from a representative of an individual data subject in the same manner and time frame in which it must respond to a request from a data subject. The Commissioner acknowledges that it would be problematic to assert that anytime a government entity receives a consent to release information, Section 13.04 applies. However, in this instance, Mr. Nickitas was acting in his client's stead, a common occurrence. The appropriate response in that circumstance is for the government entity to treat the representative as it would the data subject, for purposes of satisfying the request. For a government entity to do otherwise would have the effect of limiting a data subject's rights, simply because the data subject hired an attorney to act for her or him, or authorized someone else to gain access to private data.

For purposes of the requirements of statute and rule, the District must respond to Mr. Nickitas's request on D's behalf in the same way it is required to respond to a request which comes directly from D. In other words, through D's written authorization, Mr. Nickitas is entitled to exercise D's rights as a subject of government data, i.e., to gain access to the public and private data maintained by the District on D.

With regard to Issue 3, pursuant to Section 13.04, subdivision 3, data subjects may be required to pay the actual costs of making, certifying, and compiling the copies. Minnesota Rules Part 1205.0400, subpart 5, provides that data subjects may be charged a reasonable fee for copies, and refers to Part 1205.0300, subpart 4, for guidance in determining the amount of the reasonable fee. According to the Rule, a government entity may include the cost of labor necessary to prepare the copies in its copy charge.

According to the information provided, D was charged $.25 per page for copies. In his response, Mr. Colosimo differentiated between the costs allowable for copies of private data, pursuant to Section 13.04, and the costs allowable for copies of public data, pursuant to Section 13.03. He is correct that a government entity may include the cost of employee time to search for and retrieve government data in its charge for copies pursuant to a request under Section 13.03. However, as noted above, D requested copies of the public and private data of which D is the subject, pursuant to Section 13.04. Section 13.04 contains no provision which allows a government entity to recover the cost of employee time to search for and retrieve public and private data on an individual data subject. Mr. Colosimo stated: . . . Mr. Nickitas was charged by the school district for the actual costs of retrieving, compiling, copying, and mailing the requested data. (Emphasis added.) If that is the case, then the copy charge of $.25 per page is too high. It must be adjusted to subtract the cost of employee time to retrieve the data. The Commissioner wishes to note that on its face, a copy charge of $.25 per page is not unreasonable. However, government entities must include only allowable costs when calculating copying charges. In this circumstance, the inclusion of the cost of retrievalof the data is not allowed.

Opinion: