Issues:

In X's request for an opinion, s/he asked the Commissioner to address the following issues:

Discussion:

Issue 1

Minnesota Statutes, section 13.43, subdivision 3, classifies data about current and former applicants for employment. The following applicant data are public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. An applicant's name becomes public when that person is selected to be interviewed by the appointing authority. At that point, the applicant has become a finalist.

X requested access to the following applicant data: name; address; veteran status; test scores, including supporting documentation and interview notes; rank; job history; education and training, including licensure information; and work availability. X also asked the District to indicate the name of the selected candidate for each of the positions that were recently filled and their building assignments.

By way of letter dated September 5, 2000, the District provided X with the following applicant information: veteran's status; test score; rank on eligibility list; job history; education and training; and work availability. In addition, the District provided X with the names of the two people whom the District selected to fill the positions. The District also provided to X the building assignments for those two persons. Therefore, the remaining issue before the Commissioner is whether the District should have provided X with the following data: for applicants - names, addresses, supporting documentation and interview notes of test scores, and licensure information; and for the two new employees - their addresses.

As stated above, the name of an applicant for employment becomes public when that person is selected to be interviewed by the appointing authority. In this case, in his September 15, 2000, letter, Superintendent Lobben wrote, The interview committee is not the appointing authority. The School Board is. Therefore, the names of individuals interviewed by any group other than the School Board are not public and will not be provided to you. In her response to the Commissioner on behalf of the District, Ms. Goering did not comment directly on the issue of applicant data. Rather, she wrote, With respect to Issues No. 1 and No. 3, I direct your attention to my letter dated September 5, 2000 requesting an opinion on those same issues and setting forth the District's position. The Commissioner issued Ms. Goering's opinion as Advisory Opinion 00-049.

In Advisory Opinion 00-049, the Commissioner wrote:

In their opinion request, Ms. Goering and Ms. Skelton wrote:

Intermediate District 287 asserts that the appointing authority for employees of the District is the Intermediate School Board. The Intermediate District is a statutorily authorized combination of two or more independent school districts for purposes of offering integrated services. Minn. Stat. section136D.01; section136D.21. The Intermediate School Board has the same powers granted by law to the participating school districts. Minn. Stat. section136D.24. The board of each participating district, and therefore the Intermediate School Board is the only entity that has the statutory authority to hire employees for a school district. Minn. Stat. section122B.02 subd. 14; section123B.09 subd 6; section122A.40, subd. 3; section122A.44, subd. 1.

Therefore, they wrote, the names of the applicants that the search team interviews are not public. The names of any applicants that are then chosen to be interviewed by the School Board, the appointing authority, are public.

The Commissioner concurs with the District's analysis. In this case, because the School Board, not the selection committee, is the appointing authority, the names of applicants that the selection committee interviews are not public. The names of any applicants the School Board chooses to interview are public.

Although the District does not explicitly state that the five unnamed applicants were not interviewed by the appointing authority - the School Board - the Commissioner makes that assumption. If that is not correct and the unnamed applicants were interviewed by the Board, the District must make those names available to X.

Regarding addresses of applicants, such data are private pursuant to section 13.43, subdivision 4, and not available to X.

Regarding supporting documentation and interview notes of relevant test scores, such data are private pursuant to section 13.43, subdivision 4, and not available to X.

Regarding licensure information, such data are private pursuant to section 13.43, subdivision 4, and not available to X.

Regarding addresses of the two new employees, pursuant to section 13.43, subdivision 2, a work location is public. The District provided to X the names of the buildings in which each employee would be working. It is the Commissioner's opinion that the District's answer is responsive to X's request.

Issue 2

Pursuant to Minnesota Statutes, section 13.04, government entities are required to respond to data subject's requests for data about themselves within ten working days.

X asked to inspect all public and private data about him/herself in a letter dated August 24, 2000. In a letter dated September 5, 2000, Superintendent Lobben wrote to X. He stated, Enclosed please find copies of all public and private personnel data regarding you...The only exceptions to the enclosed data are audio tapes which are currently being copied and which will be sent to you shortly.

In a letter dated September 6, 2000, to the Commissioner, X wrote that the District did not provide X with all data to which s/he is entitled. X wrote: My own notes provided...also were incomplete....Dr. Lobben...has also withheld data which I know exists, such as correspondence with Mary Rice, an attorney hired by the school district to investigate...

In a letter dated September 9, 2000, X asked Dr. Lobben to provide the missing data.

Dr. Lobben responded in a letter dated September 13, 2000. He wrote:

The School District does not have your notes. It is not the practice of the School District to seek or accept the notes...All notes pertaining to...have been provided.

With respect to correspondence with Mary Rice, Ms. Rice has not provided the District with any notes, correspondence, or other materials as of this date. If you would like copies of documents you provided to her, I suggest that you contact her and request them....

In her response to the Commissioner, Ms. Goering wrote:

The only data about the data subject that was not forwarded to her were:

1) Attorney-client privileged communications;

2) Data collected by an investigator hired by the School District to look into alleged violations of District policy. None of this data was in the hands of the District at the time of the request for the response. Moreover, the data was classified as confidential data under Minn. Stat. 13.39. In the August 25 letter, the data subject requested only public and private data about herself; and

3) Letters received from the data subject after August 24, 2000 but before the response was sent, which she obviously already had copies of, as [s/he] wrote them.

The Commissioner has the following comments. Regarding the notes, there is a dispute. X states some are missing and the District states that they have all been provided. The Commissioner cannot make a determination one way or the other.

Regarding data relating to Mary Rice's investigation, if Ms. Rice was acting as an agent of the District and her contract with the District was written after August 1, 1999, all data relating to her service to the District are subject to Chapter 13. Therefore, regardless of where those data are located, if they are about X, and they are not confidential, they are accessible to X. Ms. Goering asserts that the data are classified as confidential pursuant to section 13.39. As the Commissioner has opined in other advisory opinions, when an entity denies access to data based on section 13.39, the chief attorney acting for the entity must have determined that a civil legal action is pending. In this case, the Commissioner is not aware that this has occurred. Furthermore, when X initially began asking about data relating to Ms. Rice's investigation, the District did not respond that the data were classified as confidential per section 13.39, or otherwise constitute data subject to an attorney-client privilege. The District cannot deny access to the data pursuant to section 13.39 unless its chief attorney has made a determination that a civil legal action is pending.

Issue 3

From the documentation provided to the Commissioner, it is not clear whether or when the District responded to X's request for data about the addresses and telephone numbers of the members of the District 287 Board of Education. Ms. Goering did not address this issue in her comments to the Commissioner but referred to the statements she made regarding Advisory Opinion 00-049, the opinion she requested on behalf of District 287.

In 00-049, the Commissioner opined:

As stated above, the District has determined, for purposes of Chapter 13, that Intermediate School Board members are employees of the District. Data about them are therefore classified at section 13.43. Subdivision 1 of section 13.43 sets forth the various types of personnel data that are public. Because home addresses and home telephone numbers are not listed as public, they are classified as private pursuant to subdivision 4 of section 13.43. (A work number and work address, however, are public.)

Therefore, District 287 is not required to provide X with the home addresses and telephone numbers of Board members.

Issue 4

It is possible for private data about more than one person to be contained in the same document. In such cases, when one of the data subjects makes a request for access to data about him/herself, it is incumbent upon the government entity to try to separate the data and provide the requestor with data about him/her without releasing private data about the other data subject(s). If separation is impossible, it may be necessary for the entity to withhold the entire document. See Advisory Opinions 94-034 and 96-002.

In her response to the Commissioner, Ms. Goering wrote:

Your fourth question assumes that the individual was the subject of the data being withheld on the grounds of the data privacy of students. This is not the case.

We agree that if private data regarding an individual is mixed with private data regarding other individuals, the appropriate way to respond to a request is to redact the names and other personally identifying information about the other individuals and provide the sanitized data to the requestor....

However, the process of redaction is only appropriate when the requestor is the subject of the data. In the present case, the requestor was given all public and private data about which s/he is the subject. The requestor is not, however, entitled to private data on students in which her name appears incidentally as a provider of services. Data on individuals' means all government data in which any individual is or can be identified as the subject of that data unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data... Minn. Stat. section 13.02, subd. 5. The log assembled and the statements concerning the January 1994 incident might be data on individuals' as applied to [the students] but Gentling was not the subject of the data. To the degree that the data identified Gentling, it was incidental to the factual focus of the inquiry. Edina Education Association v. Independent School District No. 273, 562 N.W.2d 306, 311 (Minn.App. 1997), rev. denied.

In this case, Ms. Goering asserts that the District withheld data from X in which X's name appears only incidentally and in which, therefore, the District determined X was not a subject of the data. Such determinations are dependent upon the content of the data and require that the District examine each piece of data separately. For example, if X were a teacher in the District and a student turned in a test with X's name at the top of the page, such data are not about X - his/her name is only incidental to data.

Opinion:

Based on the facts and information provided, my opinion on the issues that X raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: December 5, 2000