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 November 23, 1993, the X's parents attended a student conference concerning their son at his elementary school. In addition to his classroom teacher, other personnel of Edina were present at the conference. Following this conference, X's parents sent a letter, dated November 30, 1993, to Dr. Kenneth Dragseth, the Superintendent of Schools in Edina. In the letter, the X's parents made complaints about how the conference was handled and about certain attitudes and statements of their son's classroom teacher. According to X's parents, the sending of this letter triggered a series of events in which various personnel of Edina disseminated private educational data about them and their son to the public. X's parents identified their son's classroom teacher, the principal of his school, an assistant superintendent and a school nurse as the employees of Edina who had, in the opinion of X's parents, improperly disseminated data about them and their son. A summary of the alleged improper dissemination for each of those employees is as follows.

According to X's parents, the classroom teacher made comments to students in her class and to parents of students about the letter, about her feelings about the letter and about X and his parents. X's parents provided some details about these instances of allegedly improper disseminations of private educational data. For example, they stated that the classroom teacher had a conference with a parent of another student in X's class. According to the X's parents, the classroom teacher told this parent about the general situation of X's parents' complaints and also told her that, contrary to certain rumors, X's parents were not suing the classroom teacher or Edina. In providing details about these alleged improper disseminations, the X's parents did not include specific items of information such as names of students or parents who had received data about them or their son.

X's parents also stated that the principal of X's school had made comments about X's status in meetings and conversations with parents who were upset about what they had heard was contained in X's parents' letter to Dr. Dragseth or who had contacted the principal to ask questions about the situation. X's parents described other instances in which they believe parents had improperly received information from the principal about them, X and the situation.

X's parents then described a situation in which they believe that a mother of another student at X's school had provided data about X's parents and X to other people. According to X's parents, this particular person told people that the information she was sharing had been provided to her by an assistant superintendent for Edina. According to X's parents this information included such things as statements that X's parents were suing the District for millions of dollars and that associating with X's parents could have a negative effect on a parent's relationship with Edina.

Lastly, X's parents described an incident in which the parent of another student with whom X had had an altercation discussed details of the incident with X's mother. According to X's parents, this parent told them she had received information about the incident from a school nurse and that the nurse had told her that she had to contact this parent outside of normal working hours because of some kind of situation with X's parents.

Following this recitation of alleged disclosures of data, X's parents then asked the Commissioner to issue an opinion as to whether these disclosures were improper.

In response to X's parents' request, PIPA, on behalf of the Commissioner, wrote to Dr. Dragseth, Edina's superintendent. The purposes of this letter, dated June 15, 1994, were to inform Dr. Dragseth of X's parents' request, to provide a copy of the request to him, to ask Dr. Dragseth or Edina's attorney to provide any information or support for Edina's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On June 21, 1994, Mr. Paul Ratwik, the attorney for Edina, contacted PIPA and asked for an extension of time in which to make a response to X's parents' request. Given the allegations of X's parents, Mr. Ratwik stated that Edina needed more time to gather information from employees, some of whom had departed for summer break, in order for Edina to make a response to X's parents' request. PIPA agreed to extend additional time and, in a letter dated June 24, 1994, informed X's parents of that extension and a probable new date for issuance of the opinion.

On July 8, 1994, PIPA received a letter from Mr. Ratwik and Ms. Nancy E. Blumstein, another attorney for Edina. In this letter, the attorneys for Edina, while possibly reserving the right to submit a further response to the Commissioner's request for information, raised issues and made arguments for the proposition that the Commissioner does not have the authority to issue an opinion in this instance. A summary of the arguments presented by Edina's attorneys follows.

It is the opinion of Edina's attorneys that the Commissioner can render opinions concerning Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act and hereinafter the Act or Chapter 13, only in certain circumstances and in the presence of certain conditions. According to the Edina attorneys, the Commissioner, when asked for an opinion by a citizen, can issue an opinion concerning the only citizen's . . . rights as a subject of the government data or rights to access to this data. In addition, the Edina attorneys argue that the Commissioner can issue an opinion only after a determination about data practices has been made by the governmental entity with whom a citizen is having a disagreement.

In this particular instance, Edina's attorneys argue that Edina has not made any determinations regarding data practices that affect X's parents or their son. The Edina attorneys also argue that even if Edina has made a determination with which X's parents disagree, the Commissioner is not authorized to issue an opinion on the rights of X's parents that would be implicated by the facts of this situation. Edina's attorneys state that the rights of X's parents about which the Commissioner may issue an opinion concern only rights under Minnesota Statutes Section 13.04 and the right to seek redress under Minnesota Statutes Section 13.08. In the view of the Edina attorneys, X's parents' request for an opinion about whether Edina improperly disclosed private data about them does not involve their rights under Chapter 13 and therefore is not appropriate for an opinion.

Edina's attorneys go on to argue that for the Commissioner to render an opinion on the allegations of X's parents would require her to make determinations of fact and she does not have the authority or the resources to do so. They expressed concern that the Commissioner's statement of the issue to be addressed in the opinion assumed that X's parents' allegations were correct. As an alternative to the issuance of a Commissioner's opinion, the Edina attorneys conclude that the options for citizens to sue government agencies or to seek personnel and criminal sanctions under Sections 13.08 and 13.09 of the Act offer the proper methods for checking agency compliance and for determining the facts of a dispute between citizens and government agencies. In their opinion, Any opinion rendered by the Commissioner in this matter would effectively subvert this legislatively created mechanism.

In summary, the attorneys for Edina state that the District does not feel it is appropriate to respond to the factual allegations made by X's parents until the scope of the Commissioner's powers under the opinion statute is clarified. They also indicated that Edina reserved the right to ask for an Attorney General's opinion on the Commissioner's authority and the right to file a declaratory judgement action on this question.

On July 14, 1994, PIPA received a letter from X's parents. They had received a copy of the letter submitted by Edina's attorneys and offered arguments in their letter as to why the positions taken by Edina's attorneys are not correct. They concluded their arguments with a renewed request for the Commissioner to issue an opinion.

Issue:

Discussion:

Edina's attorneys express concern that the statement of the issue raised by X's parents assumes that Edina has done something improper and that to make a determination about this issue would make the Commissioner a finder of fact. The statement of the issue in this instance, as it has been in other Commissioner's opinions, is a statement or restatement of the citizen's view of what the citizen believes the dispute to be about. In X's parents' view, Edina has improperly disclosed private educational data. In their request, they merely ask the Commissioner to issue an opinion as to whether or not she agrees with their belief.

The Edina attorneys conclude that to deal with this issue, the Commissioner must become a finder of fact and that she does not have the authority or resources to do so. The role of facts and the authority and resources of the Commissioner related to the establishment or assumption of facts were previously discussed in the two opinions described above. These opinions should be consulted for the details of the Commissioner's view as to her authority to use facts in issuing an opinion.

Edina's attorneys also urge that an opinion by the Commissioner, in this instance, would subvert the role that civil remedies and criminal and personnel sanctions, established in Sections 13.08 and 13.09 of the Act, play in ensuring agency compliance. This argument misses the obvious. Part of the reason the legislature determined to try a process in which the Commissioner issues opinions was based on negative experiences of both agencies and the public in resolving disputes under Chapter 13 by using recourse only to traditional conflict resolution methods such as civil litigation and imposition of penalties. Contrary to the statement that the Commissioner's role in issuing opinions would subvert those remedies and penalties, the role of the Commissioner's opinions, as assigned by the legislature, is to act as an alternative and a supplement to those traditional methods of resolving disputes.

In addition to the general arguments made by the Edina attorneys as described above, they have also argued that the Commissioner should not render an opinion in this matter because the question raised by X's parents does not involve the rights of their son or themselves under the Act. In addition the Edina attorneys also argue that an opinion of the Commissioner can be issued only after a determination about data practices has been made by a government agency. In this instance, the Edina attorneys argue that no determination about data practices has been made by Edina. The Commissioner's response to each of these specific argument is as follows.

According to the Edina attorneys, the Commissioner can issue an opinion only concerning a citizen's . . . rights as a subject of government data or rights to access this data. This view of the Commissioner's authority seems to conclude that the Commissioner can issue opinions only about an individual's rights as the subject of government data and the right to access data of which the citizen is a subject. This is not the statement of the Commissioner's authority that appears in Minnesota Statutes Section 13.072. The Commissioner can actually issue an opinion to a citizen about . . . the person's rights as a subject of government data or right to have access to government data. (Minnesota Statutes Section 13.072, subdivision 1.) Contrary to the conclusion of the Edina attorneys, a citizen may ask for and receive an opinion about the right to gain access to data even if the citizen is not the subject of the data in question.

In discussing what rights of citizens are appropriate for a Commissioner's opinion, the Edina attorneys argue that these are only the rights set forth in Minnesota Statutes Section 13.04, a section of the Act which is captioned Rights of Subjects of Data. However, the Edina attorneys assert that the Commissioner also has the authority to offer opinions to citizens about their right to seek redress under Minnesota Statutes Section 13.08, the civil remedies section of the Act. In the actual language of the opinion statute itself, there is no detailed explanation as to what rights the legislature says are appropriate for opinions. When the statute says that citizens can ask the Commissioner for an opinion about their rights, there is no cross reference to Section 13.04 in that statement. If the legislature wanted to clearly limit the Commissioner's authority to deal only with the rights of data subjects under Section 13.04, it could have done so. However, it did not.

There is general agreement that one of the rights established by the Act is the right of a subject of private data not to have that data disseminated to the public or to persons not legally authorized to have access to or receive the data. (See Annandale Advocate v. City of Annandale, 435 N.W. 2d 24 (Minn. 1989), in which the Supreme Court discusses the classification of some employee personnel data as private data and concludes this classification establishes privacy rights for public employees.) It seems clear that the establishment by the legislature of classifications of various data as private gives subjects of that data a privacy right about which that citizen can seek an opinion from the Commissioner.

If the Commissioner assumes arguendo that she has the right to issue opinions only about the rights of data subjects as set forth in Section 13.04, then she must also ask whether the issue presented by X's parents implicates a right conferred on them by Section 13.04. Based on the information available to the Commissioner, it is possible that the rights conferred on X's parents and their son by Minnesota Statutes Section 13.04, subdivision 2, the so-called Tennessen Warning requirement, may be implicated in the issue they have presented to the Commissioner. (A more detailed discussion about the effect of this provision on X's parents' rights is found below.) An alleged improper disclosure of private data, if the private data has been collected from the data subject, will directly implicate Section 13.04, subdivision 2 and, even in the narrow interpretation of the opinion statute urged by the Edina attorneys, a request for an opinion about the individual's rights as a data subject will be appropriate.

The Edina attorneys also argue that the Commissioner cannot issue an opinion until after a determination concerning data practices has been made by a government agency and a citizen asks for an opinion concerning that determination. In this instance, the Edina attorneys argue that Edina has not made determinations regarding data practices, therefore there is nothing with which X's parents may disagree, and therefore an opinion is not appropriate. It is clear from the submission of X's parents' letter that they believe that Edina has made determinations regarding data practices that affect X's parents and their son and that they strongly disagree with those determinations.

The Commissioner has previously indicated that she will not issue these formal written opinions in hypothetical situations or where there has not been a determination by a government agency that affects a data subject's rights or a citizen's right to gain access to government data. However, this need for a determination by an agency should not be interpreted in such a way that an agency could avoid ever having to deal with a Commissioner's opinion by refusing to make determinations that affect data practices. In some cases, a determination necessary to a Commissioner's opinion may be a determination regarding just exactly how a government entity has chosen or not chosen to comply with provisions of the Act that affect rights of data subjects or the right of the public to gain access to data.

It is important to remember that virtually all of the rights of citizens under Chapter 13 have a procedural implication for government agencies. For citizens to be assured of their rights, agencies must establish, implement and administer certain procedures. Citizen rights under the Act are meaningless, outside the context of a law suit, if government agencies do not make the necessary data classification or other determinations that are required to be made by the Minnesota Government Data Practices Act. Rights of citizens are actualized only when agencies establish and enforce the appropriate policies and procedures that stem from those determinations. It is this ongoing process of establishing the policies and procedures required by Chapter 13, and applying those policies and procedures in specific instances, that constitute data practices determinations for purposes of compliance with Chapter 13.

In this particular instance, certain of the determinations of Edina, as it has made decisions, established policies and procedures and taken actions to comply with the Act, will have a direct bearing on the allegations of X's parents that the District has improperly disclosed private data to the public. For example, the notice required by Minnesota Statutes Section 13.04, subdivision 2, must include statements as to how a government entity intends to use data it seeks to collect for internal purposes and the section also requires that data subjects be informed of the identity of persons outside the entity to whom the collected data can lawfully be disseminated. How any government entity, including Edina, implements that particular provision constitutes a determination concerning data practices.

In conclusion, it is the position of the Commissioner that she has the authority to deal with issues such as those raised by X's parents because they involve rights of X's parents under the Act that are implicated by data practices determinations made by Edina.

Because of the decision of Edina not to provide specific factual responses to the allegations of X's parents, the Commissioner is forced into a situation of being able to use information provided by one only of the parties to this dispute. Use of conditional terminology and phraseology throughout the balance of this opinion reflects that reality.

The alleged improper disclosures of data described by X's parents all revolve around the same common theme. X's parents state that they are having a dispute with Edina about the education of their son. As part of that dispute, they sent a letter to the Edina superintendent and copied other school personnel. According to X's parents, details of the data contained in that letter and other data about them and their son have been disseminated to members of the public by agents of Edina. Specifically, X's parents identify a classroom teacher, a school principal, an assistant school superintendent and a school nurse as agents of Edina who have allegedly disseminated data to the public. The public in question in this particular instance seems to be largely parents of children who are either active in school affairs or who have children at the same school attended by X's parents' son.

In Minnesota Statutes Section 13.32, educational data is defined as data on individuals maintained by a public educational agency or institution, or by a person acting for the agency or institution that relates to a student. (Minnesota Statues Section 13.32, subdivision a.) With limited exceptions that do not appear to be germane here, educational data are private data. (Minnesota Statutes Section 13.32, subdivision 3.) By definition, private data is data that is accessible by the subject of the data, or in the case of a minor by the parents of the minor, but private data cannot be made accessible to the public. (See Minnesota Statutes Section 13.02, subdivision 12.)

X's parents also contend that in addition to data about their son being disclosed to other students and parents, data about them has also been disclosed to other parents. It is important to note that Minnesota Statutes Section 13.32 also regulates the handling of data on parents by educational agencies and institutions. Specifically, this section says that data about parents . . . shall be considered educational data. (See Minnesota Statutes Section 13.32, subdivision 2.) When read in conjunction with the language in Section 13.32 that declares the educational data are private, this language evidences legislative intent that school districts and other educational agencies and institutions should treat data they collect, create and maintain about parents as private educational data that also should not be disclosed to the public.

Under the Act, X's parents and their son enjoy the right not to have private data about them disclosed to the public. They also enjoy the right to have private data about them disclosed only to persons outside Edina who are specifically authorized by law to have access to private educational data. (See Minnesota Statutes Section 13.05 subdivision 9.) In dealing with Edina, X's parents also have the right to have private data about them disclosed only to employees and other agents of Edina whose work assignments reasonably require access to the data. (See Minnesota Agency Rules, Chapter 1205.0400 and 1205.0500.) To the extent that Edina has asked X's parents or X to provide private data about themselves to the school district, X's parents and their son have the right not to have that data used or disseminated for any purpose other than those communicated to them at the time the data was collected from them. (See Minnesota Statutes Section 13.04, subdivision 2 and Minnesota Statutes Section 13.05, subdivisions 3 and 4.)

The alleged improper disclosures described by X's parents, depending on the complete facts and circumstances, may implicate all of the rights of X's parents described in the previous paragraph. A review of Chapter 13 does not reveal any authority for the disseminations of data concerning X's parents by agents of Edina as has been alleged by X's parents. Whether Edina absolutely disputes that the alleged disseminations have taken place or has an explanation or justification for them is not known to the Commissioner because Edina has chosen not to provide her with that information.

If we take as correct the allegations of X's parents that various agents of Edina have disclosed to Edina students and parents data about X, about X's parents themselves and about the details of the ongoing educational dispute between X's parents and Edina, then this disclosure of data would be to persons who are members of the public. Dissemination of private educational data about students and parents by a school district to the public is specifically prohibited by Chapter 13 and, to the extent that such disseminations actually occurred in this instance, those disclosures of data would constitute a violation of Chapter 13.

Opinion: