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August 7, 2002; School District 284 (Wayzata)
8/7/2002 10:15:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:On June 25, 2002, IPAD received a letter dated June 21, 2002, from Dick Cargill. In his letter, Mr. Cargill asked the Commissioner to issue an opinion regarding his access to certain data that Independent School District 284, Wayzata, maintains. IPAD, on behalf of the Commissioner, wrote to Paul Beilfuss, Superintendent of the District, in response to Mr. Cargill's request. The purposes of this letter, dated July 3, 2002, were to inform him of Mr. Cargill's request and to ask him to provide information or support for the District's position. On July 11, 2002, IPAD received a response, dated July 10, 2002, from Superintendent Beilfuss. A summary of the facts as Mr. Cargill presented them is as follows. In a letter dated March 18, 2002, Mr. Cargill wrote to Alan Hopeman, the District's Executive Director of Finance and Business, and requested that the District send the following data: ...a complete and detailed accounting of all of the cost and fees associated with the special education proceedings and consultations including the attorneys' fees that were billed to and paid by the District for the last five years. In a letter dated April 12, 2002, Mr. Hopeman responded, asking for clarification. In a letter dated April 26, 2002, Mr. Cargill wrote back. He stated: ...Special education proceedings would include legal costs, courts costs, filing fees, parent attorney fees (paid by the district), District attorney fees associated with due process hearings, appeals, District Court proceedings, appeals, 8th Circuit Court proceedings, costs associated with decisions to remand to the lower courts, etc. Consultation would include such things as attendance at IEP meetings by district attorneys and/or consultant fees associated with the IEP process. This would include review of records, meeting with district staff outside of the designated IEP meeting times. All costs include legal, paralegal fees paid by the district for representation and consultation services. In a letter dated May 10, 2002, Mr. Hopeman wrote back. He stated: In order to provide you with the five years of invoices that you request, the District will have to retrieve the invoices from our archives. A staff person will have to review all invoices from law firms to determine whether the invoice is for legal services related to special education. Then an administrator will have to review those invoices to remove any private data, such as the name or initials of a student, or other confidential information from the invoice. At that point a copy of each invoice can be made and forwarded to you. Since the District does not maintain the data you request in the manner you require, you will have to pay for the cost of preparing the data. The cost will be $403.26. Issue:In her request for an opinion, Mr. Cargill asked the Commissioner to address the following issue:
Discussion:When an individual requests copies of data of which s/he is not the subject, the government entity may require the requestor to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling...the copies of the data...but may not charge for separating public from not public data. (See section 13.03, subdivision 3(c).) In his comments to the Commissioner, Superintendent Beilfuss wrote: The School District's records of expenditures for legal services are not separated by subject area. Thus, records of legal fees arising out of special education matters are not separated from legal fees arising out of other matters. The request for legal consultation fees associated with District special education services was a request for the School District to create new data, by organizing and reconfiguring data into a different format. In previous opinions, the Commissioner has advised that, in situations where the entity has been asked to create new data, the request is not a true data practices request and the amount of any charge levied by a government entity to respond to the request is not regulated by state law...the Commissioner has advised that in such instances, the entity and the requesting party work out an agreement as to an appropriate charge. Minnesota Department of Administration Advisory Opinion 97-046 (11/3/97). Superintendent Beilfuss further stated: ...In fact, the Uniform Financial Accounting and Reporting System (UFARS, which Minnesota school districts are required to use pursuant to Minnesota Statutes section 123B.77, Subdivision 1) does not specify that expenditures for legal services be separated by program. Quite the opposite...which specifies that purchase of legal services be coded to program 110, Business Support Services. To do otherwise and code these expenses to other programs, such as special education, would actually be a violation of state UFARS guidelines. Because special education legal fees are typically intermixed with other legal fees on the same invoice, and the School District has never separated out these special education legal fees, the only way to obtain the data that Dr. Cargill requests for the last five years is to retrieve paper copies of original invoices from archival storage, manually review those invoices, and create the data. Superintendent Beilfuss noted that the $403.26 fee included the time estimated to retrieve and replace all legal billing information for the past five years from its storage location; the time required to search through three law firms' invoices to separate out entries relating to special education matters (special education legal fees are not billed separately, but are included in undifferentiated billings that contain descriptions of any legal services performed for the school district during the time in question); and the employee time associated with copying the invoice information. The Commissioner recently addressed a similar issue in Advisory Opinion 02-028. In that opinion, two individuals requested the same special education billing data from Independent School District 284. However, the request was to inspect the data, rather than to obtain copies. The District, in its comments to the Commissioner regarding 02-028, presented the same arguments that Superintendent Beilfuss made here. In 02-028, the Commissioner opined that the District did not need to create data to respond to the request: The Commissioner has the following comments. Ms. Pohlman and Ms. Freeberg asked to inspect data documenting the time District attorneys have spent working on special education issues during the past five years. Ms. Ruff noted that special education legal fees are not billed separately, but are included in undifferentiated billings that contain descriptions of any legal services performed for the school district during the time in question. The Commissioner assumes, therefore, that someone who looks at the descriptions of the legal services will be able to discern special education from other services. Ms. Ruff is correct that Chapter 13 does not require government entities to create new data to respond to data requests. Here, however, the Commissioner does not agree with Ms. Ruff that the District is unable to respond to Ms. Pohlman and Ms. Freeberg without creating new data. The data exist; the real issue appears to be that the invoices are not categorized, organized, or separated according to any topic. Thus, an appropriate response from the District is to allow Ms. Pohlman and Ms. Freeberg to inspect all legal invoices for the past five years and let them total up what the District has spent on special education. However, as stated above, inspection of government data is free and the District cannot charge a fee, including any cost it incurs separating the public from not public data contained in the invoices. (See section 13.03, subdivision 3(a). Here, Mr. Cargill has asked for copies of the District's special education billings. Thus, in the Commissioner's opinion, the District should provide Mr. Cargill with two options in response to his request. One is that the District will make copies of all the District's legal billing invoices. In such a scenario, the District can charge only for the actual cost of searching for and retrieving the data, and for making the copies. The District may not charge for separating public from not public data. Mr. Cargill will then be able to cull through the invoices and determine how much the District spent on special education legal services. The second option is for the District to allow Mr. Cargill to come to the District and inspect those same invoices. As in the first scenario, Mr. Cargill will then have an opportunity to look over the invoices and tally up what the District has spent on special education services. However, as the Commissioner stated in 02-028, inspection of government data is free and the District cannot charge a fee, including any cost it incurs separating the public from not public data contained in the invoices. (See section 13.03, subdivision 3(a).)
Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Cargill raised is as follows:
Signed: David F. Fisher
Dated: August 7, 2002 |
Copy costs
Existence of data
Response to data requests
New data or different format not required
Public and not public data
