Discussion:

Issue 1

In a letter dated June 3, 1999, and delivered to the District on that date, X wrote to Dr. Giroux and requested photocopies of all past/current attorney bills (from both law firms that were involved) relating to [Y]. On June 11, 1999, X delivered to the District a second copy of that request.

In a letter dated June 14, 1999, Mr. Cady responded, stating that he had asked the District's law firms to provide the District with copies and/or summaries of all past and current attorney bills. On receipt from the law firms, I will forward that information to you.

In letters dated June 22 and June 24, 1999, X's attorney, Sonja D. Kerr, wrote to Mr. Cady, and reiterated X's request. Mr. Cady responded to Ms. Kerr in a letter dated June 25, 1999, in which he enclosed the information that your clients requested.

In a letter dated July 23, 1999, X wrote again to Dr. Giroux, and stated that s/he had not received copies of all of the relevant attorney bills. X stated: [w]e did not receive a copy of the itemized bill for [one of the law firm's] work on the MDCFL complaint prior to 5-4-99. I assume that they charged the district for their response?

In a letter dated July 26, 1999, Mr. Cady wrote to Ms. Kerr, and stated that he enclosed copies of two billings that were inadvertently omitted in my June 25, 1999 letter to you.

In his response to the Commissioner, Mr. Cady stated:

The request for attorney data, specifically attorney bills, is subject to the provisions of Minn. Stat. section 13.03, subds. 2 and 3, which requires a responsible authority to respond in a prompt and appropriate manner and within a reasonable time. In order to insure that private or confidential data contained within the relevant attorney bills did not get inappropriately released, it was necessary for the District to review the bills to insure that private or confidential data not requested or accessible by X' be redacted.. . . .

The response, within 22 calendar days, was appropriate and within a reasonable time period. On or about July 23, 1999, X' informed the District that copies of two bills had been omitted. On July 26, 1999, the District immediately forwarded the copies of the bills that were inadvertently omitted in the earlier response.

The District provided X copies of the data requested (with two exceptions) 16 working days after receiving the request. In X's request to the District, X stated that attorney bills appear to be public data. In his response to the Commissioner, Mr. Cady stated that the District responded to X's request within the statutory time frame for public data, as set forth at section 13.03, subdivisions 2 and 3.

If the data in question are public data, then the Commissioner agrees with Mr. Cady, that the District's response was prompt. It is unfortunate that two of the bills X requested were inadvertently omitted from the District's response, but that in itself does not constitute a violation of the requirements of section 13.03.

However, the nature of X's request, i.e., data that specifically relate to attorneys' involvement with Y, suggests to the Commissioner that the data may more appropriately be treated as educational data, which are private under section 13.32 and federal law, because they are data that relate to a student. (See section 13.32, subdivision 1(a) and the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. Section 1232g.)

If that is the case, then the District did not comply with the then-applicable statutory requirement as set forth at section 13.04, subdivision 3, which required government entities to comply with a data subject's request for data within five working days, or, with written notice, within ten working days. (This requirement was amended in 1999. As of August 1, 1999, government entities must comply with a data subject's request within ten working days. See Laws for Minnesota 1999, Chapter 227, Section 2.)

Issue 2

In a letter to Y's District case manager dated November 23, 1998, and delivered on November 24, 1998, X wrote that X disagreed with how Y's progress or needs were characterized, and stated that s/he would like to see any data that forms the basis for those conclusions. X stated that s/he would appreciate receiving this information within the timelines of the Minnesota Government Data Practices Act (MGDPA).

The District's response, in a letter dated December 2, 1998, stated that the District suggested that X make an appointment to review Y's records, to determine which records X wanted copied.

In a letter dated December 10, 1998, X requested copies of all of [Y's] files. X stated [w]e do not have the time to sit and be supervised while we go through all of [Y's] records. On December 22, 1998, X delivered to the District a second copy of that request.

In a letter dated December 28, 1998, the District stated:

We are also in receipt of your second request for a copy of the records under the Government Data Privacy [sic] Practices Act; the district once again encourages you to schedule a time to review the records. The records in the files on [Y] are estimated at 3,000 pages; much of which you have already been provided. We believe it would be most effective if you reviewed the files indicating data you want to have copied.

According to X's contemporaneous notes, X began reviewing Y's records on January 7, 1999. Files maintained by some District staff, which might have contained additional data on Y, were not available for X's review until January 14, 1999.

According to X's notes, on several occasions between January 7, 1999, and February 8, 1999, X received originals rather than copies of some of the records s/he flagged for copying, or received defective copies, or didn't receive copies of several pages requested. As of February 8, 1999, X had copies of everything s/he requested, except one record X was told was missing.

In his response to the Commissioner, Mr. Cady wrote: [a]s noted in the December 2nd and December 28th, 1998, correspondence to X' the District had been involved with X' regarding [Y] . . . throughout the calendar year of 1998. Throughout that process, much of the approximately 3,000 pages in [Y's] files which would include data responsive to the November 23, 1998 request had been provided to X.' Mr. Cady stated that the District met its statutory obligation under section 13.04, subdivision 3.

In her/his request delivered to the District on November 24, 1998, X asked to see the data the District relied upon to characterize Y's progress or needs at her/his Periodic Review. The District responded, four working days later, by suggesting that X review Y's file, as it comprised approximately 3000 pages, in order for X to determine what pages s/he wanted copied. Pursuant to the requirements of Section 13.04, subdivision 3, the District was obligated, within five or ten working days, to make available for X's inspection the specific data requested, namely, the data the District used as a basis for its assessment of Y at Y's Periodic Review. The District did not do so. Instead of responding to X's specific request, the District essentially counter-offered an alternative.

Subsequently, in a letter dated December 10, 1998, X asked for copies of Y's entire files. At that point, the District was required to provide X with copies of all educational data about Y within five days of that request. Again, the District did not do so. Nearly two months after requesting copies of all data about, and one month after X started inspecting Y's files and making repeated unsuccessful requests for copies, X finally had copies of most, but not all, of Y's records. The District did not meet its obligation to X under Section 13.04, subdivision 3.

Issue 3

In a letter dated August 25, 1999, and delivered to the District on that date, X wrote to Dr. Giroux and requested a copy of the videotape of [Y's] IEP [Individualized Education Program] meeting held on August 24, 1999 (which the district taped). This videotape is private data, but would be considered educational data. This appears to be public data under . . . Chapter 13.

The District provided a copy of the videotape with a letter dated September 10, 1999. In his response to the Commissioner, Mr. Cady stated:

The videotape requested by Respondent constitutes data on individuals including personnel data subject to the provision of Minn. Stat.section 13.03, subd. 3 and educational data on Y' subject to the provisions of Minn. Stat. section 13.04, subd.3. Following a review of the videotape as well as arranging for a copy, the District responded to the request within 12 days, which satisfies the requirement of Minn. Stat. section 13.03, subd. 3. The nature of the videotape does not provide the convenience of culling only the educational data separate and apart from other data. As such, the District's response was appropriate and reasonable.

Mr. Cady appears to suggest that the videotape contains both private educational data on Y, and public personnel data, which are classified as either private or public, under section 13.43. He concludes that the District's response was appropriate under section 13.03, which sets forth the statutory time frame requirements for responding to a request for public data.

The Commissioner disagrees. The nature of the videotape, i.e., data about Y's IEP meeting, are data that relate to Y. As such, those data are educational data, which are private under section 13.32 and FERPA, and the appropriate time frame is that provided at section 13.04, subdivision 3. The District provided X a copy of the videotape 15 working days after receiving X's request. It was required to do so within ten working days.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by X is as follows:

Signed:

David F. Fisher
Commissioner

Dated: November 15, 1999