August 7, 2002; School District 284 (Wayzata)
8/7/2002 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 June 25, 2002, IPAD received a letter dated June 21, 2002, from Marcy Pohlman and Susan Freeberg. In their letter, Ms. Pohlman and Ms. Freeberg asked the Commissioner to issue an opinion regarding their access to certain data that Independent School District 284, Wayzata, maintains. IPAD, on behalf of the Commissioner, wrote to Paul Beilfuss, Superintendent of the District, in response to Ms. Pohlman's and Ms. Freeberg's request. The purposes of this letter, dated June 27, 2002, were to inform him of the request and to ask him to provide information or support for the District's position. On July 9, 2002, IPAD received a letter dated July 2, 2002, from Sara Ruff, an attorney representing the District. A summary of the facts as Ms. Pohlman and Ms. Freeberg presented them is as follows. On April 5, 2002, they wrote to Alan Hopeman, the District's Executive Director of Finance and Business: This is a request to review the [sic] all expenditure information associated with legal proceedings and consultation services including all attorney and legal fees related to Special Education Services in ISD #284 for the last five years. This includes but is not limited to the recent 8th circuit case. In a letter dated April 16, 2002, Mr. Hopeman responded. He asked Ms. Pohlman and Ms. Freeberg to clarify their request and asked some specific questions. Then he wrote: The District's practice is to charge for requests under the Minnesota Government Data Practices Act. The charge will include copying costs, and will also include costs for staff time to research and retrieve the data. However, before I can provide you with an estimate of the costs to fill your request, I need to have a much clearer idea of what you want. If you can provide that clarification, I will gladly tell you what it will cost to provide the information you request so that you can review it. Ms. Pohlman and Ms. Freeberg wrote back to Mr. Hopeman in a letter dated April 25, 2002, in an attempt to clarify their request. Mr. Hopeman wrote back in a letter dated May 10, 2002. He stated: In order to provide you with the five years of invoices that you request, the District will have to retrieve the invoices from our archives. A staff person will have to review all invoices from law firms to determine whether the invoice is for legal services related to special education. Then an administrator will have to review those invoices to remove any private data, such as the name or initials of a student, or other confidential information from the invoice. At that point, a copy of each invoice can be made available to you to inspect. Since the District does not maintain the data you request in the manner you require, you will have to pay for the cost of preparing the data. The cost will be $403.26. I would prefer that this be paid upfront before my staff and I perform this work. Issue:In her request for an opinion, Ms. Pohlman and Ms. Freeberg asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 3(a), when an individual asks to inspect government data, the government entity cannot charge a fee.In her comments to the Commissioner, Ms. Ruff wrote: The School District's records of expenditures for legal services are not separated by subject area. Thus, records of legal fees arising out of special education matters are not separated from legal fees arising out of other matters. The request for legal consultation fees associated with the District special education services was a request for the School District to create new data, by organizing and reconfiguring data into a different format. Ms. Ruff noted that the Commissioner previously has opined that government entities are not required to create new data in response to a data request. Thus, stated Ms. Ruff, the $403.26 charge is the result of Mr. Hopeman's analysis of the cost of responding to the request. She stated, Mr. Hopeman prepared an estimate of the costs of searching for, retrieving and re-organizing government data, including the cost of employee time, and for making and compiling copies. In summation, Ms. Ruff wrote: The School District recognizes that the requestor's written request was to inspect public data and that a public entity may not require the requesting person to pay a fee to inspect data....However, as noted above, this is not merely a request for inspection of public data, where the requestor can simply be shown the data he or she is requesting. Rather, the request is actually a request for creation of new data, requiring a multistep process. The School District must first separate special education billing information from other billing information, and then must create redacted copies of the requested data to provide it for inspection. The Commissioner has the following comments. Ms. Pohlman and Ms. Freeberg asked to inspect data documenting the time District attorneys have spent working on special education issues during the past five years. Ms. Ruff noted that special education legal fees are not billed separately, but are included in undifferentiated billings that contain descriptions of any legal services performed for the school district during the time in question. The Commissioner assumes, therefore, that someone who looks at the descriptions of the legal services will be able to discern special education from other services. Ms. Ruff is correct that Chapter 13 does not require government entities to create new data to respond to data requests. Here, however, the Commissioner does not agree with Ms. Ruff that the District is unable to respond to Ms. Pohlman and Ms. Freeberg without creating new data. The data exist; the real issue appears to be that the invoices are not categorized, organized, or separated according to any topic. Thus, an appropriate response from the District is to allow Ms. Pohlman and Ms. Freeberg to inspect all legal invoices for the past five years and let them total up what the District has spent on special education. However, as stated above, inspection of government data is free and the District cannot charge a fee, including any cost it incurs separating the public from not public data contained in the invoices. (See section 13.03, subdivision 3(a).) If Ms. Pohlman and Ms. Freeberg would like the District to create a document that contains only those data representing what the District has spent on special education fees, which the District apparently does not maintain, its creation is outside the purview of Chapter 13. In such a case, it is up to the parties to negotiate an arrangement whereby the District would create the document. A final note is in order. Chapter 13 exists, in large part, to facilitate public access to government data. Ms. Pohlman and Ms. Freeberg's request was to inspect data; inspection is always free. Given that the District apparently does not maintain data as Ms. Pohlman and Ms. Freeberg requested them, i.e., a periodic listing of what it spends on legal fees for special education, the District first should have considered whether any data exist that the requestors could examine to make their own list. The Commissioner has addressed similar issues in previous opinions. In Advisory Opinion 97-005, the Commissioner wrote, If Carver County does not have the requested data sorted or formatted according to the specific years that employees worked for the County, then it may be necessary for Mr. Michels to inspect the data relating to all current and former employees and make the employment-date determination himself. In Advisory Opinion 01-012, the Commissioner wrote: ...The Commissioner would like to add, however, that before the District agreed to create for Mr. Bradt a report made up of public data, it probably should have advised him that he could have inspected and received copies of the public data in the format in which the District maintains those data. If Mr. Bradt had requested the raw data, the request would have been subject to the requirements of Chapter 13. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Pohlman and Ms. Freeberg raised is as follows:
Signed: David F. Fisher
Dated: August 7, 2002 |
Inspection
Inspect before creating new format
Public and not public data
