Discussion:

Government data collected, created, or maintained because an individual is or was an employee of a government entity are classified by Minnesota Statutes Section 13.43. Individuals such as A who are the subject of government data are, in most cases, entitled to gain access to those data pursuant to Section 13.04. Subdivision 3 of Section 13.04 states that when a data subject requests access to data about him/her, the government entity must comply with the request immediately or within five to ten working days.

In addition, specific to this opinion, Minnesota Statutes Section 181.954, subdivision 2, classifies test result reports and other information acquired in the drug or alcohol testing process as private data on individuals per Chapter 13. Further, Section 181.953, subdivision 8, states, An employee...has the right to request and receive from the employer a copy of the test result on any drug or alcohol test.

In a letter dated May 18, 1998, A requested access to the drug/alcohol test results from the District's Superintendent. In their comments to the Commissioner, Messrs. Knutson and O'Donnell argued that no response to A's written request was required because the District had already provided the data to A's union business agent. They cited a clause in Section 13.04, subdivision 3, which states, After an individual has been shown the private data and informed of its meaning, the data need not be disclosed to that individual for six months thereafter... Messrs. Knutson and O'Donnell asserted, [t]he School District was not required to respond to any further requests for the same information for six months thereafter and the School District has fully complied with the requirements of [Chapter 13].

It is correct that pursuant to Section 13.04, when an individual has gained access to private data, the government entity is not required to again disclose the same data to that individual for six months. Messrs. Knutson and O'Donnell argued that because A's union representative was acting as A's agent when he (the union representative) requested the information, the effect of the data transaction was as if A had requested the data him/herself. In such a case, if the District wished, it could impose the six-month time restriction. However, if the union representative was not acting in A's stead (see Minnesota Rules Sections 1205.0200, 1205.0400), but rather was someone to whom A had simply consented that the data be released (pursuant to Section 13.05, subdivision 4), the time limit does not apply. Although the distinction between these two scenarios is subtle, the difference in their effect is significant. In this case, the Commissioner does not have enough information to determine which situation applies.

However, A's argument that s/he should have been granted access to the data, and that the six-month limitation imposed by Section 13.04, subdivision 3, should not apply, is further buttressed by additional subdivision language. The second half of the Section 13.04 phrase referenced by Messrs. Knutson and O'Donnell states, [t]he 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. (Emphasis added.) In this situation, based on Mr. Nickitas' comments, there appears to be a dispute pursuant to the accuracy and/or completeness of the drug/alcohol test data. Mr. Nickitas wrote, [A] is currently seeking to correct [A's] personnel file and medical records kept by the Moose Lake Community Schools, in accordance with Minn. Stat. 13.04 subd. 4 to expunge all evidence suggesting [A] had failed or refused to provide an adequate sample' for a random controlled substance test. Therefore, A should be granted access to the data.

Messrs. Knutson and O'Donnell asserted that disputes over drug testing that involve employees covered by collective bargaining agreements are to be resolved first through the grievance and arbitration proceedings provided by the collective bargaining agreement. They cited Minnesota Statutes Section 181.956, subdivision 1. Such a situation does not preclude either A from requesting access to data about him/her or the District from providing data to him/her.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Nickitas is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: July 30, 1998