Discussion:

Issue 1:

Whether or not certain personnel data that relates to proposed disciplinary actions about public employees, including teachers, become public is the subject of Minnesota Statutes Section 13.43, subdivision 2. This provision of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA contains a list of data on public employees that is classified as public data. Under this provision, personnel data on current or former employees that is public includes: . . . the existence and status of any complaints or charges against the employee, whether or not the complaint or charge resulted in a disciplinary action; the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body; . . . . The quoted language states a principle that, although limited information is available to the public about a governmental entity's consideration of a proposed disciplinary action against one of its employees during the time of that consideration, considerable information about the actions of the entity and the employee will become public if the entity disciplines the employee and that disciplinary action is final.

Section 13.43, subdivision 2, in clause (b) provides guidance to government entities as to just exactly when a disciplinary action against a public employee becomes final. This clause states that a final disposition of a proposed disciplinary action against an employee occurs when the government entity has made its final decision about the disciplinary action regardless of the possibility of any later proceedings or court proceedings. This general rule, that a disposition is final when the entity makes its final decision, is modified in situations where the employee being considered for disciplinary action has rights under a collective bargaining agreement. When the employee, under the terms of the agreement, can grieve a proposed disciplinary action and carry that grievance through a proceeding before an arbitrator, the final disposition of a disciplinary action does not occur until the conclusion of the arbitration proceedings. An arbitration proceeding is concluded when the arbitrator completes consideration of the matter and sends a copy of the decision in the arbitration to the parties.

In this instance, the Notice of Deficiency was the statement given to the teacher that the teacher had engaged in certain inappropriate conduct. This particular Notice also contained a notice to the teacher that the teacher was being suspended for ten days without pay. This Notice of Deficiency appears to contain statements as to what disciplinary action was proposed by District 112 . Once the arbitrator issued an award upholding that disciplinary action, the nature of the disciplinary action itself, the reasons for the action and data documenting the basis for that action became public data under Minnesota Statutes Section 13.43, subdivision 2. During the time that the Notice of Deficiency and proposed 10 day suspension were being grieved, the Notice and related data continued to be private data as required by Minnesota Statutes Section 13.43, subdivision 4. However, once the arbitrator's award sustained imposition of a disciplinary action the data became public.

Issue 2:

The status of data contained in the Arbitrator's decision depends on the actual content of the decision and how data that identifies individuals in that decision is classified under the MGDPA. A copy of the actual decision of the Arbitrator has not been provided to the Commissioner. Information provided by Ms. Krisnik indicates that the decision contains information about whether the proposed disciplinary action against the teacher is appropriate and does contain information about other employees and students of District 112.

As previously noted, data about the teacher in the Arbitrator's decision that states reasons why disciplinary action can be taken against the teacher or data that document the basis for the disciplinary action are public data. (Minnesota Statutes Section 13.42, Subdivision 2.) The status of data in the Arbitrator's decision that identifies other employees and students in District 112 is less clear cut. The District's request indicates concern that release of individually identifiable data about other employees and students may be improper. This could be the case if the data released about other employees or students are private data.

Data about other employees of the District that appear in the Arbitrator's decision are private if the data in question identifies those employees, states something about those employees and whatever is stated about the other employees is not data that is identified as public data in Minnesota Statutes Section 13.43, subdivisions 2 and 3. Without examining the actual content of the decision, it seems reasonable to conclude that the data about the other employees that appears in the decision is basic information that identifies them, states their positions within District 112 and then refers to what they testified about as to their actions and the actions of the teacher that lead to the disciplinary action taken against the teacher. Names of public employees, their job titles and job descriptions are public data. Data describing the actions or lack thereof of an employee identified in the decision, other than the teacher disciplined, can be viewed as private data about that employee. However, data provided by other employees about the actions of the teacher disciplined are properly viewed as data about the disciplined teacher. To the extent those data constitute reasons for the disciplinary action or are data that document the basis for the action the data are public data.

Data about students of District 112, that appear in the Arbitrator's decision, may also be private if the data in question identifies a student, states something about the student and the data in the statement is not data that constitutes data designated as directory information by state and federal law. Data on individuals that is maintained by District 112 that relates to an individual who is currently or formerly enrolled as a student in the District is educational data. (See Minnesota Statutes Section 13.32, subdivision 1, clauses (a) and (b).) All educational data is private data unless certain data about students is designated as directory information by state and federal law. Once a school district goes through the directory information process contemplated by federal law, the MGDPA states that data on students designated as directory information is public data for purposes of the MGDPA. (See 20 U.S.C. 1232g, 34 C.F.R. Section 99.37 and Minnesota Statutes Section 13.32, Subdivision 5.)

Without actually examining the Arbitrator's decision, it is reasonable to conclude that the portions of the decision that involve students of District 112 are data that identifies those students and that refers to their actions and observations relative to the conduct of the teacher that lead to disciplinary action being taken against the teacher. To the extent that these data only are about what the student said, did or experienced, a strong argument can be made that these data fit the definition of private educational data under Minnesota Statutes Section 13.32. This conclusion is reinforced by the requirements of federal law. The federal law cited above states that education records are records that directly relate to a student and that are maintained by an educational institution or person acting for the institution. Except in limited instances none of which are relevant here, education records cannot be disclosed without parental consent.

However the actual data that relates to students in the Arbitrator's decision may be their statements about the actions of the teacher who is being disciplined. To the extent that this data does not identify the student, it can be properly viewed by District 112 as data about the teacher. If these statements provide reasons as to why disciplinary action was taken against the teacher or constitute data that documents the basis for the action, they are public data about the teacher.

Issue 3:

Much of the discussion and analysis associated with Issue 2 is applicable to the questions raised in Issue Number 3 as to what portions of the transcript of the arbitration hearing are public data. Although the question specifically raises the issue of the content of the testimony of the teacher who was disciplined, the same analysis applies to the testimony of all of the witnesses as either persons employed by District 112 or students of the District. If the transcripts contains witness statements that are either private educational data or private personnel data then the portion of the transcript in question should be treated as private data. If the testimony, as it appears in the transcripts, concerns the actions and statements of the teacher who was disciplined and if that testimony provides a reason or reasons for why disciplinary action was taken against the teacher or are data that documents the basis for that action, then the data are public under Minnesota Statutes Section 13, 43, subdivision 3

If a given set of testimony does contain private personnel or educational data intermixed with public disciplinary data and the data can be redacted in such a way as to not disclose private data about other employees or students of District 112, the redaction process would be an appropriate way to balance the protection provided to those employees and students with the right of the public to gain access to the reasons for and the data that documents the basis for the disciplinary action taken against this teacher.

Opinion: