January 4, 1994; School District 829 (Waseca)
1/4/1994 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 December 14, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja D. Kerr who is the attorney for Jim Hay, a lay advocate for children with disabilities. The facts she alleged in her request were as follows.Acting as an advocate for two children, Mr. Hay visited the offices of the Waseca Public Schools, Independent School District Number 829 and hereinafter District 829 , on November 5, 1992. (One item should be clarified here. In her letter Ms. Kerr states that Mr. Hay visited District 829 on November 29, 1992. However, in an affidavit prepared by Mr. Hay and submitted by Ms. Kerr, he states that he appeared at District 829 on October 30, 1992. The balance of this Opinion will assume that Ms. Kerr's date notation is an error.) He brought with him a signed authorization, from the mother of the children, for access to the school records about her children. On the actual date of his visit, October 30, 1992, Mr. Hay was not provided either access to the records or copies of those records. Also, according to Ms. Kerr, he was not advised by representatives of District 829 that it was not possible to comply with his requests. Ms. Kerr enclosed with her request for an opinion a copy of a letter from the District 829's attorney, Ms. Susan Torgerson. This letter, dated November 6, 1993, and sent by facsimile transmission and mail to Ms. Kerr, states that Mr. Hay should not have expected immediate access to the data because District 829 was entitled to take time to collect the information. The letter also indicates that on November 5, District 829 completed its collection of the information and attempted to contact Mr. Hay to see whether he wished to pick up the information. Ms. Torgerson indicates that the transmittal of the information to Mr. Hay had now been accomplished. Following her descriptions of Mr. Hay's dealings with District 829, Ms. Kerr then requested an opinion of the Commissioner of Administration on the issues described below. In response to Ms. Kerr's request, PIPA, on behalf of Commissioner Debra Anderson, wrote to Fran Heinen, Superintendent of District 829. The purposes of this letter, dated December 16, 1993, were to inform District 829 of Ms. Kerr's request, to acquaint the District with the Commissioner's authority to issue opinions, to ask the District or its attorney to provide any information in support of the District's position and to inform the District of the date on which the Commissioner was required to issue this opinion. A copy of this letter was sent to Ms. Torgerson, in her capacity of attorney for District 829. On December 29, 1993, the Commissioner received a mailed letter of response from Ms. Torgerson and signed by Ms. Elizabeth B. Davies, another attorney for District 829. In her letter, Ms. Davies offered specific information and argument in response to the first issue raised by Ms. Kerr and argued that it would be improper for the Commissioner to provide a response to the second issue. More of Ms. Davis' information and argument will be addressed below. Issue:
In her request for an opinion, Ms. Kerr stated the issues as follows:
Discussion:
Issue 1:Was it a violation of Mr. Hay's rights when District 829 denied him immediate access to records of the children and did not state a reason for the denial?Both Ms. Kerr and Ms. Davies agree that the provision of the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and hereinafter MGDPA , that governs Mr. Hay's request and District 829's response is Minnesota Statutes Section 13.04, subdivision 3. This provision of the MGDPA provides that a data subject has a right to seek access to private or public data about him or herself by either inspecting the data in question or being provided with copies of the data. What access method is required depends on what type of access the data subject has requested. The responsible authority is required to provide immediate access if possible and if immediate access is not possible, the MGDPA requires that access be provided within five working days. Although Mr. Hay was not the subject of the data he was requesting, he was acting on behalf of and with the consent of a parent of the minor data subject and both Ms. Kerr and Ms. Davies indicate in their argument that Minnesota Statutes Section 13.04, subdivision 3 was the section guiding the actions of both Mr. Hay and District 829 once Mr. Hay made his request for access. Ms. Kerr argues that District 829 was required to provide Mr. Hay with immediate access to the data. She further argues that if immediate access was not possible, District 829 should have advised Mr. Hay that immediate access was not possible. Ms. Davies argues that it is in the nature of educational records that they must be carefully examined so that information about other students, for example, can be removed so that the private status accorded to the data about other students will not be compromised. She also points out that District 829 is obligated by the Rules of the Department of Administration to proceed with caution when an individual such as Mr. Hay appears with an authorization to gain access to data about students. (See Minnesota Rules Section 1205.0400.) Ms. Davies also points out there is nothing in either the MGDPA or the Department of Administration rules that require District 829 to state any reason for why it is denying immediate access to the data. Lastly, she points out that in this instance, copies of the records were made available to Mr. Hay within five days of his request and therefore the access requirement of Minnesota Statutes Section 13.04, subdivision 3, was met. It is clear from the information provided by Ms. Kerr and Ms. Davies that Mr. Hay knew at the time of his request on October 30, 1992, that he was not going to be provided with immediate access to the records. It is not clear from the information provided just exactly what Mr. Hay was told about when access would be provided. However, Section 13.04, subdivision 3 of the MGDPA did not require District 829 to provide Mr. Hay with a statement of denial of access and basis for denial. Although the legislature has made this explicit statement a requirement when access to public data is denied, it has not imposed a similar requirement when a data subject or representative of a data subject is denied immediate access to data about the subject. Once District 829 refused Mr. Hay immediate access to the data, the District was then required to comply with his request within five days of the request. In this instance, it appears that District 829 did provide Mr. Hay with the copies of the records on November 5, 1992. October 30, 1992, was a Friday. District 829 provided the copies to Mr. Hay on the following Thursday. His request for access was provided by the District within four working days of the receipt of the request. District 829 acted within the requirements of Minnesota Statutes Section 13.04, subdivision 3. Issue 2:Is Mr. Hay a person within the meaning of Minnesota Statutes Section 13.08, subdivision 1, the action for damages remedy provision of the MGDPA?Other than raising this as an issue for the Commissioner to offer an opinion about, Ms. Kerr does not provide any information or argument as to why Mr. Hay ought to be treated as a person within the meaning of Minnesota Statutes Section 13.08, subdivision 1. On the other hand, Ms. Davies concludes that by asking for an opinion on this issue, Ms. Kerr is actually asking the Commissioner to offer an opinion on whether Mr. Hay was legally damaged by the actions of District 829 and therefore can maintain a lawsuit under Minnesota Statutes Section 13.08, subdivision 1. Ms. Davies argues that the Commissioner should decline to answer that question because the question is being asked in anticipation of civil litigation or to leverage an additional legal settlement. Although the MGDPA defines the term person in Section 13.02, subdivision 10, it is clear that the legislature has left it up to the judicial system to address and decide contested issues of a person's ability to bring and to carry forward a lawsuit brought under the provisions of the MGDPA. Although it is not entirely clear that Ms. Kerr is actually asking the question that Ms. Davies argues Ms. Kerr is asking, the Commissioner is of the opinion that given the scant information provided it is not appropriate for the Commissioner to say anything more on this particular issue. Opinion:Based on the correspondence in this matter my opinion of the issues raised by Ms. Kerr is as follows:
Signed: Debra Rae Anderson
Dated: January 4, 1994 |
Response to data requests
Data subjects
Advocates - access to data
