Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation.

Facts and Procedural History:

On December 10, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Ms. Sonja Kerr who is the attorney for X, a minor and his parents. X is a student enrolled in the White Bear Lake School District Number 624, hereinafter District 624. The facts she alleged in her request were as follows.

X was enrolled in an extended day care program within District 624. The parents and the District had a disagreement about that enrollment and X was terminated from the day care program in June, 1993. In July, 1993, X's parents met with District 624's superintendent, Dr. Ted Blaesing, to discuss the dispute. During that meeting, Dr. Blaesing read what Ms. Kerr describes as a report to X's parents. This report had been authored by Ms. Peggy Coleman, one of the day care teachers. According to Ms. Kerr, this report related to X's termination. Although Ms. Kerr states that X's parents were not allowed to see or have a copy of this report, she does not make it clear if X's parents asked to see or receive a copy of the report during this meeting.

However, on September 15, 1993, X's father sent a letter by certified mail to Dr. Blaesing and asked for a copy of the report. In a letter dated September 22, 1993, Dr. Blaesing acknowledged receipt of X's father's letter. He also characterized the report as notes recorded by Ms. Coleman after, what he described to X's father as, . . . the incident which occurred between Peggy [Coleman] and yourself last spring. Dr. Blaesing then stated that A staff member's notes are not public records and cannot be automatically released to anyone upon request. Therefore, Dr. Blaesing refused to provide X's father with a copy of the report or notes. Copies of X's father's letter and Dr. Blaesing's response were provided by Ms. Kerr.

Following her description of the exchanges between X's parents and Dr. Blaesing, Ms. Kerr then requested an opinion of the Commissioner of Administration on the issue described below. In response to Ms. Kerr's request, PIPA on behalf of Commissioner Anderson wrote to Dr. Blaesing in his capacity of Superintendent of District 624. The purpose of this letter, dated December 13, 1993, was to inform District 624 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 the letter to Dr. Blaesing was sent to the Knutson Flynn law firm after PIPA was informed that this firm represented District 624. No correspondence from either the District or its attorney has been received in response to the December 13, 1993, letter.

Issue:

Discussion:

Ms. Kerr's position is that this data, whether it be characterized as a report or staff notes, ought to made available to X's parents because it is data about them and their child and is therefore accessible by them under the provisions of Minnesota Statutes Section 13.04, subdivision 3, the Right of Subjects of Data section of Chapter 13 of Minnesota Statutes, the Minnesota Government Data Practices Act and hereinafter MGDPA . District 624's position, as taken from Dr. Blaesing's letter to X's parents, is that the notes recorded by Ms. Coleman . . . are not public records and cannot be automatically release to anyone upon request. The answer to the issue raised by Ms. Kerr involves an analysis of where, within the coverage of the MGDPA, these notes actually fall.

The MGDPA's overall objective is to regulate various aspects of governmental data collection, use and dissemination and to also regulate access to government data. Government data is the basic subject matter of the MGDPA and the definition of the term government data is exceedingly broad. 'Government data' means all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. In the normal course of governmental operations, it is not state agencies or political subdivisions that actually collect and create data, data in most instances are collected or created by employees of state agencies and political subdivisions who are acting as agents on behalf of the government entity that employs them.

In this particular instance, it appears from the correspondence, that Ms. Peggy Coleman, an agent of District 624, created or collected certain data about X's parents and their son X. While there is some dispute as to whether the data were notes or a report , the actual existence of the data is not disputed. In addition to that it appears that the data were used in discussions between X's parents and District 624. In his September 22, 1993, letter, Dr. Blaesing does not dispute that notes made by Ms. Coleman were read to X's parents during the July meeting. For purposes of the MGDPA, it appears clear that the notes are indeed government data. Whether or not those notes as government data are accessible by X's parents is a function of how those notes are classified for purposes of the MGDPA.

The MGDPA contains a very clear presumption that all government data is accessible by the public unless certain data are classified as private, confidential, nonpublic or protected nonpublic i. e. not public. Whether certain data are not public is a function of whether there is a state statute or federal law that says certain data are not public. However, the fact that certain data may be classified as not public does not mean that the data in question are automatically not accessible by those who may be the subjects of that data. The MGDPA does provide that when certain data are classified as private or nonpublic, those types of data are accessible by the subjects of the data. (See Minnesota Statutes Sections 13.02, subdivisions 9 and 12 and 13.04, subdivision 3.) As these notes are government data, then they should be accessible by X's parents if they are either public or private data about X's parents and their child.

Much of the sheer volume of language in the MGDPA is concerned with identifying various types of government data and stating classifications for those types of data. The key to determining exactly how a given set of data is classified depends on what type of data is involved in a given situation. Examination of the circumstances and agencies involved in generating data will normally answer the question as to what type of data is involved.

In this instance, the data in question were generated by an agent of District 624. The section of the MGDPA that deals with educational data defines educational data as follows: 'Educational data' means data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student. Clearly, District 624 is an educational institution or agency. Just as clearly, X is a student who is currently enrolled in District 624 and was formerly enrolled in the extended day care program. Any data maintained about X by District 624, or by an agent for the District such as Ms. Coleman, fits the definition of educational data and most educational data are classified as private. (See Minnesota Statutes Section 13.32, subdivisions 1 and 3.)

Although it is not completely clear from either Ms. Kerr's or the District's discussion and description of the notes, it appears likely that these notes may also contain data about X's parents and especially X's father. To deal with the issue of a school district maintaining data on parents, the MGDPA contains language that data concerning parents shall be considered educational data. Therefore, to the extent that these notes discussed X's parents, they are also private data and ought to be accessible to X's parents. (See Minnesota Statutes Sections 13.04, subdivision 3 and 13.32, subdivision 2 and 3.)

Dr. Blaesing's characterization of these notes as a staff member's notes that are not public records leaves one question to be addressed. Although educational data has a broad definition, certain data maintained by school districts and by agents of those districts have been exempted by the legislature from being educational data. The practical effect of these exemptions is that data falling into an exemption may not be accessible by a subject of that data. One of the exemptions covers records of instructional personnel maintained solely in the possession of the creator of the record and not shared or revealed to anyone else except a substitute. This exemption is popularly referred to as the desk drawer notes exemption. (See Minnesota Statutes, Section 13.32, subdivision 1 (a).) Ms. Coleman's notes do not appear to fall within this exemption.

Although Ms. Kerr describes Ms. Coleman as a teacher, and therefore within the words of the exemption, instructional personnel , it appears from the information provided that Ms. Coleman shared these notes with Dr. Blaesing, who was not a substitute for her. He in turn shared the content of the notes, but not the actual notes themselves, with X's parents. It is clear that if these were notes of instructional personnel that they were not maintained solely in Ms. Coleman's possession and therefore they do not qualify as part of this exemption and are therefore educational data.

To the extent that these notes identify X, they are educational data about him and given the fact that he is a minor, they are accessible by his parents. To the extent that these notes identify either of X's parents, they are also educational data about them and are accessible by them. This result is reached by a reading of Minnesota Statutes Sections 13.02, subdivision 8, 13.04, subdivision 3 and 13.32.

Opinion:

Signed:

Debra Rae Anderson
Commissioner

Dated: December 30, 1993