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 October 24, 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 at the Minnesota River Valley Special Education Cooperative, hereinafter River Valley . The facts Ms. Kerr alleged in her request were as follows.

Sometime in April, 1993, X was involved in an altercation with another student at River Valley. Following that incident, X was asked to write-up what happened by Mr. Joel Kiekbusch, his special education teacher. Preparing these kinds of statement was part of X's individualized education plan (IEP) and he had prepared previous statements. X prepared the statement that was requested.

On or about June 26, 1993, X's parents received a notice that X was being charged, in Scott County Juvenile Court, with Fifth Degree Assault. This charge grew out of the previously described April incident. According to Ms. Kerr, X's father was told by police that a copy of a handwritten statement prepared by X was in their possession. Ms. Kerr states that X's father then verbally asked the school to provide him with a copy of any report on the incident and, in July, the school provided a copy of an incident report that described the April incident but did not provide a copy of the statement prepared by X. On July 14, 1993, X's father wrote a letter to River Valley specifically asking for a copy of the statement. Subsequently, X's father received a copy of X's statement from the county attorney's office. According to Ms. Kerr, River Valley has never provided a copy of X's statement to his parents and never indicated why they have failed to do so.

A motion was made to suppress the statement in Scott County Juvenile Court. Judge Jean Davies of that Court ordered that the statement be suppressed. The juvenile court matter was settled with a plea bargain.

In response to Mr. Kerr's request for an opinion, PIPA, on behalf of the Commissioner wrote to Ms. Nedra Mahaney, the Director of River Valley in a letter dated October 28, 1993. The purpose of this letter was to inform River Valley of Ms. Kerr's request, to acquaint personnel of the Cooperative with the Commissioner's authority to issue opinions, to ask River Valley to provide any information to explain the actions taken or not taken and to inform them of the date on which the Commissioner was required to issue this opinion.

On November 9, 1993, PIPA received a letter from Ms. Nancy E. Blumstein, the attorney for River Valley. Although Ms. Blumstein offered information to describe and explain River Valley's actions in this matter, the primary thrust of her letter was to argue that the Commissioner is being asked to issue an opinion which is outside the scope of the Commissioner's authority and therefore that it would be improper for the Commissioner to issue an opinion.

The information offered by Ms. Blumstein included the following. The statement that X was asked to prepare was consistent with X's educational needs and called for by his IEP. Ms. Blumstein asserted that X's parents had given written consent for preparation of statements of this type by signing and dating the IEP. X was not asked to prepare the statement as part of any kind of investigation of the altercation but as part of his educational process. According to Ms. Blumstein, the statement . . . was disposed of by the School since it had served its educational purpose. She stated that X's parents' complaint had been investigated thoroughly by River Valley and that the Cooperative has determined that no one at the School either contacted the police or provided them with the information. It is the position of River Valley that because X was asked to prepare this statement as part of a class assignment, that was consistent with the IEP executed by his parents, that it was not necessary for River Valley to give X a Tennessen Warning , i.e. the notice required by Minnesota Statutes Section 13.04, subdivision 2, when he was asked to prepare the statement.

Issues:

Discussion:

Before offering opinion on each of the specific issues raised by Ms. Kerr, the basic question of the authority of the Commissioner in this matter, as raised by Ms. Blumstein, must be addressed. The plain statement of that authority, as it relates to requests from individuals for opinions, is found in the 1993 enactment. Chapter 192 states: Upon request of any person who disagrees with a determination regarding data practices made by a state agency, statewide system or political subdivision, the commissioner may give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. (Minnesota Session Laws 1993, Chapter 192, Section 38.)

In her request for an opinion, Ms. Kerr asked the questions stated as Issues above. The first issue involves a question as X's rights and River Valley's actions relative to Minnesota Statutes Section 13.04, subdivision 2. Section 13.04 is the part of Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act and hereinafter MGDPA that is captioned Rights of Subjects of Data . The right afforded by this subdivision in appropriate circumstances is the right of an individual to receive and the duty of an agency to provide the notice required by Minnesota Statutes Section 13.04, subdivision 2. It is the view of X and his parents that certain determinations were made by River Valley involving the data collected in his statement and that those determinations involve the practices of River Valley concerning data about X that affect his rights as a data subject and therefore it is appropriate to seek an opinion from the Commissioner. The Commissioner agrees that this is a question of data practices and data subject rights and it is appropriate for her to issue an opinion.

The second issue raised by Ms. Kerr presents similar questions. This issue involves the right of X and his parents to gain access to data allegedly maintained about him by River Valley. The data subject access right is covered by Minnesota Statutes Section 13.04 subdivision 3. The right provided by this subdivision is the right of a data subject, and in the case of a minor his parents, to gain access to all private or public data maintained about the subject by an agency subject to the MGDPA. Again, the question that is presented is a question that involves the data practices of an entity subject to the MGDPA and the effect of those practices on a data subject's rights. This is clearly a question that is appropriate, given the language of Chapter 192, for the Commissioner to address in an opinion.

Ms. Blumstein's arguments about the Commissioner's authority urge the Commissioner to adopt a narrow view of that authority. Ms. Blumstein's chief objection seems to rest on the concern that the Commissioner is being asked whether the actions of an entity subject to the MGDPA constitute a violation of the MGDPA. Many of the questions that can be asked of the Commissioner under this new authority will implicitly or explicitly lead to a conclusion, based on the facts relied on by the Commissioner in issuing an opinion, that a violation of the MGDPA may have occurred. The Commissioner is of the opinion that refusing to issue opinions in situations like that would lead inevitably to a situation of issuing no opinions whatsoever because virtually all opinions could be interpreted as a finding that an agency violated the MGDPA.

It is the Commissioner's opinion that the legislature conferred sufficient authority on her to issue these types of opinions. Her opinions are by their nature conditional on the facts and information presented to her by the government entity and the data subject. To the extent that a Commissioner's opinion becomes at issue as part of a lawsuit, no court is bound to adopt all or part of a Commissioner's opinion. Under the terms of the authority conferred by the legislature, courts are only asked to give deference to the Commissioner's opinions, they are not directed to surrender their fact finding authority to the Commissioner or to automatically accept that if the Commissioner determined on the facts provided to her that there may have been a violation of the MGDPA that an actual violation did occur. To the extent that a court finds the Commissioner's opinions helpful because of the special expertise of the Department of Administration in data practices matters it is free to use that expertise. To the extent that a court finds that the commissioner's opinion rests on incomplete or incorrect facts, the court will obviously be free to find its own facts.

One last factual item of Ms. Blumstein's arguments about the Commissioner's authority needs to be addressed. In her argument, Ms. Blumstein states that the legislature could not have contemplated that the Commissioner would be making factual determinations because it did not provide the Commissioner with additional staff or funding to perform fact finding or a forum to do so. Attention is directed to Minnesota Session Laws 1993, Chapter 192, section 15, subdivision 7, in which the legislature did appropriate additional funds to the Commissioner for the purpose of . . . giving opinions under Minnesota Statutes section 132.072.

In addition to the additional funding, the legislature provided the forum for the Commissioner to gather information and facts by directing her to provide a government entity, whose data practices will be the subject of an opinion, with the opportunity to explain its decisions regarding the data. (Minnesota Session Laws 1993, Chapter 192, section 38, subdivision 1.) If an entity chooses not to offer facts or information to explain its actions, the Commissioner will still issue an opinion. However, the opinion will, by necessity, be conditioned only on the facts and information provided. The Commissioner has concluded that issuing an opinion in these circumstances is the best way to carry out the legislative directive to issue prompt opinions to help resolve and analyze disputes while at the same accommodating the interests that an individual or entity may be trying to protect when the individual or entity decides not to provide information or facts.

The Commissioner's position on the third issue is the subject, in more detail, of a separate opinion requested by Ms. Kerr, and that position will be addressed in that opinion.

The Commissioner's opinion on the actual issues for which Ms. Kerr requested an opinion are as follows. As discussed above, the opinions rely solely on the information provided by Ms. Kerr and Ms. Blumstein and are therefore conditioned on that being the only information before the Commissioner.

Issue 1

In summary, Ms. Kerr asks whether River Valley's actions in collecting the statement from X were in violation of Minnesota Statutes Section 13.04, subdivision 2, the notice requirement which is popularly known as the Tennessen Warning ?

The notice requirement, which currently appears at Section 13.04, subdivision 2 in Minnesota Statutes, has been a part of the MGDPA and it predecessor statute, the so-called Data Privacy Act , since 1974. (See Minnesota Session Laws 1974, Chapter 479, section 4.) The purpose of the notice is twofold. First, it operates to provide a data subject and, in the case of a minor data subject, the minor's parents with information about data that a government agency wants to collect from the subject so the data subject can make an informed decision based on what s/he is told about the data as to whether or not s/he will actually provide the data. This notice requirement is grounded in the view that the ultimate privacy protection, if one wants to protect oneself from governmental privacy intrusions, is to just not provide the data at all.

The second purpose for the notice is to establish a baseline for government entities to be guided by in their subsequent decisions about uses and disseminations of data provided by an individual after s/he has been provided with the notice. This purpose is accomplished by direction from the legislature that data collected from an individual after the Tennessen Warning notice is given . . . shall not be collected, stored, used or disseminated for purposes other than those stated to the individual at the time of collection in accordance with section 13.04, except as provided in this subdivision. (Minnesota Statutes Section 13.05, subdivision 4. The exceptions described in the subdivision include subsequent legislative changes, approvals by the Commissioner of Administration and consents by data subjects.)

Minnesota Statutes Section 13.04 is silent on the issue of just exactly what form the notice must take. It is clear that a notice is required when an individual is asked to provide private or confidential data that is about the individual asked to provide the data. The general content of what must be included in the notice is provided but the specifics that fit the actual circumstance of the entity's data collection must be provided by the government entity requesting the data. (See Minnesota Statutes Section 13.04, subdivision 2.)

Ms. Kerr is of the position that River Valley violated her clients rights by not telling him or his parents the reason for why the statement was being requested, of his right to refuse the statement, of any known consequence to him of refusing and whether the information could be provided to a law enforcement agency. River Valley, through Ms. Blumstein, responds that this statement was taken as part of X's educational needs and was provided for in his IEP which his parents had approved. The portion of the IEP that was enclosed with Ms. Blumstein's letter does contain language that says that as part of his educational program X needs to be listened to and . . . to have the opportunity to express his side of a problem in a quiet non-distracting, private setting.

Other than this portion of the IEP, neither Ms. Kerr nor Ms. Blumstein has provided the Commissioner with any information as to exactly how River Valley implements the requirements of Minnesota Statues Section 13.04, subdivision 2 when it collects private educational data from students. (See Minnesota Statutes Section 13.32 which classifies almost all data about student as private educational data.) To the extent it accepted that X's parents participated in the development of the IEP, signed off on it and were made aware as part of the IEP development and agreement process that X would be asked to prepare written statement about his side of problems, then it is clear that they were either informed that statements would be prepared in certain circumstances or they consented to their preparation by agreeing to the IEP. Unfortunately the information provided does not make that particular result clear.

If the IEP language is the functional equivalent of the notice required by Section 13.04, then it is deficient because other than identifying to the reader to the fact that X would be asked to express his side of problems in a private non-distracting setting, it says nothing, except in the most general of terms, about the purpose for requesting this information from X and the uses to which River Valley would put the information. (It can be inferred from the overall language of the IEP that the information provided is to assist X in accomplishing his educational objectives but that is not explicitly stated.) The portion of the IEP provided by Ms. Blumstein contains no notice as to whether X is legally required to provide statements, of any known consequence to him of providing or not providing statements and the identity of other persons and entities authorized by law to receive data provided by X. It must be emphasized that River Valley may be providing this kind of detailed notice in some other fashion. However, it has not chosen to provide that information to the Commissioner.

Based on the information provided, it does not appear that X or his parents were provided with the complete notice required by Section 13.04 for those situations in which X was asked by provide private data concerning himself to his special education teacher who was an agent of River Valley.

Issue 2

In this issue, Ms. Kerr asks if River Valley violated Minnesota Statutes Section 13.04 by failing to provide a copy of the statement to X's parents after their requests to do so?

Minnesota Statutes Section 13.04, subdivision 3 requires that upon the request of a data subject and, in the case of a minor data subject, his parents, an entity subject to the MGDPA is required to provide the data subject or his parents with access to private or public data that the entity is storing about the data subject. For purposes of the MGDPA, access means that the individual must be shown the data or provided with a copy of the data. Which form of access is provided depends on what form the subject or parents request.

In her request for an opinion, Ms. Kerr states that sometime after July 26, 1993, her clients verbally asked the school for a copy of any report on the incident. In response to that request, the school on July 7, 1993, provided an incident report dated April 14. This report was on a form used by River Valley for staff reports of student incidents. Subsequently, X's father, on July 14, 1993, wrote a letter to Nedra Mahaney requesting . . . all and every written piece of information, (concerning the April 14 incident) including the report X had written and given to Joel Kiekbusch. Prior to X's father's presentation of this letter to the school district, it could be argued that his previous requests for data about his son were sufficiently vague so as not cover the statement in question. However, the wording of the July 14 letter clearly makes a request not only for the statement but all other data concerning the April 14 incident. According to Ms. Kerr, River Valley never provided a copy of X's statement and never indicated why they failed to do so.

River Valley's position, as stated by Ms. Blumstein, is that after X wrote out his statement and it was discussed with him, . . . it was disposed of by the School since it had served its educational purpose. Ms. Blumstein's statement does not contain an exact date when the disposition of the statement occurred. It can be reasonably inferred from her statement that this disposition must have taken place within days after the April 14 incident and therefore the statement was not being retained by the District when X's father made his July 14, 1993 request for the statement.

Minnesota Statutes Section 13.04, subdivision 3 requires that agencies provide data subjects with access to stored data. If an agency is not retaining data, then no obligation arises from Section 13.04. Although a government entity might, as a matter of courtesy in a situation like this, if it knew about the destruction of the statement inform the parents of that fact, there is no requirement imposed by Section 13.04 on an entity to inform data subjects that data they are requesting is no longer being stored by the entity. The disposition of this data by River Valley may raise issues under other provisions of the MGDPA that impose obligations on River Valley to maintain current, complete and accurate data on individuals, see Minnesota Statutes Section 13.05, subdivision 5, and may also raise issues as to whether this data was properly disposed of as required by the Minnesota Statutes Section 138.163 et.seq, the Records Management Act , but no opinion of the Commissioner has been requested about those issues.

Based on the information provided, it does not appear that the statement in question was being stored by River Valley at the time X's father requested a copy of the statement.

Opinion:

Based on the correspondence in this matter, subject to the qualifications discussed above, my opinions on the issues raised by Ms. Kerr are as follows:

Signed:

Terry L. Bock for
Debra Rae Anderson
Commissioner

Dated: November 12, 1993